Category: Dispute Resolution

Introduction

Professional practices require guidelines that ensure people work in a healthy environment and interact without conflicts. Work policies are not adequate to guarantee employees safety and assure them of proportional compensation when they are injured or their property destroyed. There is the need to ensure employees work in unity and assist each other to ensure the goals of their organisations are achieved.

Organisations cannot achieve their objectives if there are unresolved conflicts between workers and management (Henshaw 2012). Therefore, there is the need for the establishment of dispute resolution mechanisms to ensure all conflicts are solved as soon as they occur. In addition, this ensures disputes are solved in appropriate ways without violating the rights of workers or other parties involved. This paper analyses how the dispute resolution mechanism of NZS3910: 2013 Conditions of Service.

Preservation of Relationships

The article explains various ways of ensuring there is a healthy relationship between contractors and engineers. These two parties play important roles in ensuring projects are completed within the specified time and that they are of the desired quality. The article highlights the need for effective communication between the contractors and engineers to ensure the following issues are addressed.

First, there is the need to ensure contractors are in total control of their projects and thus that can predict the outcome of construction processes (Salacuse 2014). Therefore, the article gives the contractor the power to communicate in writing to the engineers and inform him of any proposed changes that will ensure adverse impacts of various situations are minimised or eliminated.

This means that they are in charge of monitoring the progress of their projects and inform engineers about any unexpected situations that may affect the quality of their work. The effect may lead to poor quality work or delayed completion of projects.

In addition, it advocates for meetings between contractors and engineers to ensure they have adequate time to discuss issues that may affect the quality of projects. These meetings may be planned by either of them to ensure they present their views on ways of reducing costs of managing the effects of the external environment that may affect the quality or duration of a project (Henshaw 2012).

These meetings should be held immediately the concerned parties notice that there are issues that must be addressed. It is necessary to explain that projects are very delicate and thus there is the need for contractors and engineers to pay attention to their proceedings. This will ensure all situations are monitored and appropriate changes made as soon as they are noticed.

Moreover, the contract allows the engineer to request his contractor to make changes to a project to ensure the quality of their work is not compromised. Engineers are supposed to make recommendations and specify the time within which corrections are supposed to be done (Otis 2009).

For instance, if an engineer suspects the quality of material or design is inappropriate in a given area, he has the right to request the contractor to make changes within specified period that should not exceed five days unless under extreme conditions. These provisions promote healthy relationships between contractors and engineers and ensure their projects are completed within specified time. In addition, they help in eliminating misunderstanding between these parties and ensure there is adequate dialogue whenever conflicts arise.

Protection of Privacy

The contract highlights the need for the contractor, engineer and other stakeholders to provide the necessary information required to ensure a project succeeds. This means that withholding useful information from other parties is an offence that may attract prosecution and termination of contract (Salacuse 2014). Therefore, all parties are supposed to evaluate the role and importance of their information to the success of their projects.

However, there are some issues that are not bound by this provision. This means that the parties have the right to keep or share some information depending on their assessment of their appropriateness in the success of a project (Sears 2010). First, the contractor or engineer has no right of using the personal information of another party for reasons other than the ones it was requested for. This means that the personal information provided during a contract period is used within a specified time and not after the completion of a project.

In addition, the state will collect personal information from an individual when it is necessary to do so and if the intention is within the scope of a project and its contract. Individuals have a right to have their personal information kept in secret and disclosed after they are consulted and agree on the issue (Adrian 2014). All information stored in state offices should be protected from unauthorised access and disposed according the appropriate procedures.

Flexibility of Proceedings

The clause advocates for timely communication between contractors and engineers about any changes if there are fears that any of the following is bound to happen. First, sometimes the contract price may be altered because of changes in prices of the materials used. The contractor is supposed to notify the engineer in writing and inform him about the changes and how they impact the cost of their construction (Otis 2009).

In addition, all projects usually have scheduled periods within which they must be completed. However, some issues may arise and make contractors unable to complete their projects within the stipulated time. Therefore, they are supposed to communicate with engineers to ensure they understand this situation and make arrangements to accommodate the delays. This ensures disputes between engineers and contractors are minimised.

In addition, all parties involved in a contract have a statutory duty of ensuring they reduce the impacts of unexpected events (Sears 2010). All stakeholders are supposed to request for a meeting to discuss proposals that will avoid or reduce the impacts of unexpected situations. Advance notices are usually given to all stakeholders to ensure the value of any variation arising from the matter is not affected.

Moreover, engineers are supposed to inform contractors if they discover any defects in a project. In addition, a five day period is allowed to remedy the situation. This allows the contractor adequate time to make appropriate changes and inform the engineers if they can manage the situation (Otis 2009). This is a reasonable way of assessing the suitability of a contractor to manage complicated tasks and if he proves to be unsuitable the engineer may hire another person to do the job.

This will not affect the project or performance of the first contractor because he will have understood the situation. These provisions are based on the fact that there are unavoidable circumstances that may cause conflicts between contractors and engineers. Therefore, the project should be flexible to ensure the effects of unexpected events are accommodated without compromising the quality of a contractors work.

Conclusion

It is necessary to establish a healthy relationship between a contractor and engineer to ensure projects are completed within their stipulated time and are of high quality.

The privacy of the contractor or engineers information is important in safeguarding their rights and ensuring they work in healthy environments. Projects must be designed in ways that accommodate unexpected changes; therefore, they must be flexible to ensure they enable contractors and engineers to make changes that are aimed at improving the quality of constructions.

References

Adrian, J 2014, Construction Productivity: Measurement and Improvement, Stripes Publishers, New York.

Henshaw, J 2012, A Guide to Scaffold Use in the Construction Industry: OSHA 3150 2002, CreateSpace Independent Publishing, New York.

Otis, L 2009, Construction Dispute Resolution: Leading Lawyers on Understanding the Benefits of ADR, Educating the Client, and Navigating the Effects of the Economic Downturn, Thomson West, Minnesota.

Salacuse, J 2014, The Three Laws of International Investment: National, Contractual, and International Frameworks for Foreign Capital, Oxford University Press, Oxford.

Sears, K 2010, Construction Contracting: A Practical Guide to Company Management, Wiley, New York.

Introduction

Arbitration is sufficiently a wide notion. However, the main concept of arbitration can be seen as the most ancient form of dispute resolution, where the mediatory functions performed by arbitrators preceded governmental authorities. Today there are many arbitration and arbitration tribunals in the world, being one of the most effective methods for dispute resolution. In that regard, this paper provides an analysis of the essence of arbitration along with its role in the alternative dispute resolution process.

Overview

Defining arbitration it can be said that it is a judicial mechanism for solving conflicts, where the dispute is submitted to one or more impartial persons for a final and binding decision, known as an award. (Arbitration) The main principle in arbitration is its voluntary nature, where parties are the ones who decide should the conflict be solved through arbitration, where it should be solved, and where the awards should be executed. The procedures and the rules of arbitration cover wide conditions and circumstances, where there are commercial, consumer and labor rules specified in arbitration in a wide variety of industries. (Arbitration) Arbitration is a form of alternative dispute resolution (ADR), where arbitration as other forms of ADR is a private method, where [a]n arbitrator or panel of arbitrators conducts an information-gathering process, which may include document exchange, briefing and testimony of witnesses. (Bennett 4-5) Although the parties have the right to appeal, the awards are usually conclusive, final, and binding. (Leb) Privacy was mentioned as one of the aspects of the arbitration, there are other advantageous characteristics that make parties prefer such solutions to their disputes. Usually, these characteristics include but are not limited to the following:

• Choice of decision-maker  an important factor, especially when there are disputes requires certain knowledge and expertise. In the case an agreement was not reached regarding the person who will serve as an arbitrator, there is an option for sponsoring organizations that provide a list of potential arbitrators. (Bennett 6)
• Flexible rules  the flexibility in rules allows the parties to make sure that the best resolution will be reached.
• Reduced costs and time  this factor is not proven, but nevertheless, it is believed that the streamlined procedures, which are typically employed, can improve the efficiency of the decision-making process. (Bennett 4)
• Recovery of costs  this factor forces the party that lost the decision to pay the system, which reduces increases the possibilities of settlement.
• Neutral territory  this factor eliminates the home court factor when resolving a dispute.

Domestic and International Arbitration

Domestic arbitration and international arbitration do not differ substantially, except for one factor. The factor is that the regulation of domestic arbitration has a distinguished enforcement mechanism, while international arbitration can be seen lacking where the implementation of the awards can be more than difficult in cases where parties decide not to abide by the decision. (Leb) In that regard, there is a dispute whether international arbitration can be considered as an ADR. Such a statement can be considered controversial and contradict the main characteristics of arbitration. For example, The International Chamber of Commerce Amicable Dispute Resolution system excludes arbitration, while other institutions considered both approaches as alternatives. In that regard, the difference between domestic and international arbitration can be narrowed to the fact that domestic arbitration can be related to the dissatisfaction with the current litigation system, while international arbitration resolving disputes can be related to the neutrality of the chosen arbitration, due to the difference in the rules and laws in parties home courts. In that sense, the attractiveness of arbitration is serious can be seriously reconsidered if taking the possibility of enforcement absence. Accordingly, the role of other methods of ADR might be reconsidered.

The Role of Arbitration in ADR

The role of arbitration in ADR can be seen through a comparison with other forms of ADR such as mediation, and accordingly with its disadvantages. In that regard, the main difference can be seen in arbitration having win-lose solutions, while mediation has win-win, and the possibility for appeal, where arbitration might have this possibility while mediation does not. (Leb) In other factors, both arbitration and mediation have similar roles, and both differ from conventional dispute resolution processes. Accordingly, if omitting the possibility of the enforcement disadvantage. Arbitration can be seen as an established aspect of ADR, both domestically and internationally. For example, in regard to the domestic ADR regulations in the United States, the Alternative Dispute Resolution Act requires that every federal district court authorize the use of alternative dispute resolution processes in all civil actions (Bennett), offering at least one form of ADR including arbitration.

Another opinion can be seen that arbitration is gradually increasing its formalization processes, which makes resorting to arbitration becoming more and more similar to the court jurisdictions. (Vicuna) In that regard, the role of arbitration can increase if proper mechanisms were provided in terms of enforcement, and revisions were made to the formal aspect of arbitration procedures.

Conclusion

It can be concluded that arbitration is an effective method for dispute resolution, which has distinct characteristics that make it preferable as an ADR. Arbitration has a large role as an ADR, especially in the international context, where many business contracts include an obligatory clause regarding arbitration as an alternative dispute resolution process. Nevertheless, it should be noted that the criticism regarding the enforcement process requires the establishment of a particular mechanism for that procedure. In that regard, with proper mechanism applied, the factor of the country as enforcement location will be eliminated.

Accordingly, the other side of such an approach is that institutionalizing the arbitration process will lead to losing the characteristics that distinguished arbitration from litigation, leaving only the aspect of privacy. Regarding the domestic arbitration procedures, it can be said that the US ADR act provides the necessary tools for the arbitration to be implemented and enforced in case the party that lost refused to comply with the award. In that regard, arbitration is a valuable ADR in the federal or state court systems.

Works Cited

Arbitration. 2009. American Arbitration Association. Web.

Bennett, Steven C. Arbitration: Essential Concepts. New York: ALM Pub., 2002.

Leb, Christina. Arbitration. 2003. Beyond Intractability. Eds. Guy Burgess and Heidi Burgess. Conflict Research Consortium, University of Colorado.

Vicuna, Francisco Orrego. Arbitration in a New International Alternative Dispute Resolution System. Dispute Resolution Journal (2002). Web.

Plessy v. Ferguson approached the Fourteenth Amendment literally, distinctly emphasizing equality in their separate but equal approach; it was Constitutional, but also politically beneficial to the white majority. Brown v. Board of Education occurred in a different socio-political climate which presented evidence that highlighted that the equality promoted by segregation laws was not that way in practice. The Supreme Court used data collected by psychologists Kenneth and Mamie Clark that demonstrated the negative impact of segregation on the psyche of African American children, and other evidence suggesting underfunding, overcrowding, and inherently unequal conditions in black schools  leading to the overturning of Plessy (Brown v. Board of Education (1954)).

Although law is meant to be a set of enforceable rules, it cannot predict every possible situation nor are all laws going to be equally applicable after passage with time as society, technology, and other aspects of the status quo evolve (Cheeseman). Flexibility of the law is a complex legal debate, but a large majority of scholars and potentially the Founding Fathers, believed that the law can and should adapt, thus the purpose of Constitutional amendments and the Supreme Court, to set new precedent based on the ongoing situation in the country and realities of social relevance.

Negotiation is the simplest of the ADR methods, a procedure of discussion between parties to come to an amicable resolution or settlement that can be then agreed to in a legal form (such as a settlement agreement) approved by a judge. Mediation goes a step further in the negotiation process by inviting a neutral third party to assist disputing parties in reaching a settlement if they are unable to do so on their own. Arbitration consists of selecting an impartial third party that examines the facts of the case and decides the dispute. Arbitrations are more complex and formal and are usually included preemptively in the contract and are guided by specific rules. Arbitrations can be binding as the decision is final and non-binding with the possibility of appeal to legal courts (Cheeseman).

ADR methods vary in complexity and ramifications. A negotiation is largely voluntary, and any side may choose to walk away and begin legal proceedings. Meanwhile, arbitrations take time and the decision of the arbitrator, even if its non-binding, will be presented and likely influence the court. Business disputes are potentially highly technical and rely on UCC which is rather rigid on many issues, thus it is best to resolve the issue before trial, particularly for the side in violation. Arbitrations also offer other elements that businesses value including speed, flexibility, and confidentiality (Cinotti and Stein).

International treaties the likes of TRIPS and agreements under the WTO and the World Intellectual Property Organization (WIPO) are existing and being enforced. However, the issue is complex and has become increasingly political as well in recent years, making current agreements signed approximately 20 years ago significantly outdated in the current intellectual property rights (IPR) status quo. One major issue is that patents and some other forms of IP are country specific. Therefore, a U.S. based patent does not guarantee protection elsewhere.

Most disputes by businesses must be resolved at the local level in the country where IPR are being violated. Many countries are not keen on enforcing IPR legally, either for political or economic reasons. There is virtually no means to enforce rulings on IPR unless the country itself does it locally. The best approach would be to implement new strategies that promote a strong global IPR regime, which would particularly put pressure on countries that intentionally violate IP (i.e. China) and assist developing nations in technical efforts of building IP infrastructure  driven altogether by innovation. This should be supported by robust legal frameworks internationally that allow for greater inspection and enforcement by arbitrations, including for violations of IP even at the local levels and support for businesses beyond transnational corporations (Ezell and Cory).

The wording of the language in the Walmart court decision does reflect the Standards for Suppliers section of the company contract. In the contract, the wording suggests that Walmart has the option to inspect and observe and cancel orders or terminate contracts if discrepancies with local regulations are found. The workers never had a case against Walmart because workers were never an active party in the contract, and incidental beneficiaries have no rights to enforce or sue under others contracts (Cheeseman). In order to make the workers the intended beneficiaries of Walmart supplier contracts, the wording must directly state that if Walmart and its suppliers do not fulfill obligations regarding local labor laws, employees are eligible for compensation. Only by directly stating workers as a party in the contract, do they become intended third-party beneficiaries.

Monetary damages are most common for breach of contract. These include, compensatory damages compensate the nonbreaching party for the loss occurred due to the breach, restoring the benefit that would have been gained if the contract were fulfilled. Consequential damages are foreseeable damages outside of the primary contract damages that can be recovered by the non-breaching party, but contracts may have a disclaimer preventing such action (Cheeseman).

Monetary rewards may not always provide sufficient relief, resulting in equitable remedies, which are actions that a court can force upon a breaching party. Equitable remedies usually occur in egregious violations of contract or when consequences of the breach have far-reaching effects that monetary damages may not compensate. A specific performance remedy forces the breaching party to perform the act outlined in the original contract. This may include actions such as delivering goods paid for in the contract or fulfilling a sale (such as a court judgement to sell property). An injunction is a court order which prohibits a party from performing a certain act, which has been demonstrated to cause irreparable injury to the plaintiff party. Injunctions can be used in aspects such as employment where an individual is prohibited to work for a competing organization or as common in employment contracts, within a certain distance (Cheeseman).

The CAN-SPAM Act attempts to regulate marketing and spam emails and messages on a federal level. In reality, many businesses send marketing emails that are considered spam, but these are allowed if following strict rules outlined in the law. However, there are a large number of spam messages received by third parties with malicious intents such as fraud, malware, phishing, or simply false or manipulative marketing. The CAN-SPAM Act is weak, particularly in the modern environment with almost two decades since its passing, it is unable to adequately regulate online spam. It does not provide civil right of action to individuals, does not regulate international emails, and largely offers very little protection (Cheeseman).

Although Facebook and other platforms have utilized CAN-SPAM to get major legislative wins against spammers (albeit unlikely to collect the multimillion-dollar compensations), the court decisions are largely ineffective against individual malicious parties. Official businesses attempt to comply with CAN-SPAM to avoid lawsuits, but the large issue remains with individual spammers who use other illegal tactics such as hacking Facebook accounts or creating hundreds of fake emails to generate spam. The true nature of spam is that it is difficult to identify, track, and prevent under the current legal regulations (Chowdhry).

Common law of contracts is developed from court decisions, usually at the state level that became precedent for later rulings. Although general principles remain, there are important variations. The UCC was created with the sole purpose of unifying and creating a consistent legal base for commercial law (including contracts) among the 50 states. Elements such as employment, insurance, real estate, intangible assets, and service provision are governed by common law of contracts that is based on case law rather than a uniform code (Common Law and Uniform Commercial Code Contracts).

The UCC places the risk of loss of goods on the party that is most able to bear the risk or insure against it. The UCC is typically used for any disputes, unless there is an issue that is not included, at which point the common law of contracts comes into play. The UCC had the objective to unify commercial codes specifically for sales and leases which often occur on an interstate basis, thus eliminating the confusion for commercial businesses (Cheeseman). The UCC is more rigid than common law on a variety of aspects such as offers, performance, warranties, and other general terms of contracts which promotes the objectives that the UCC is meant to achieve as to ensure consistency and stability for those engaging in commercial sales across the country.

The rationale behind the entrustment rule is the principle of estoppel. The rightful owner is stopped by his own acts from asserting the title if given the merchant the usual evidence of title or apparent authority to dispose of it. It is in place to protect the good faith buyer who had no knowledge that the entrustee had no right for sale. Unless the original goods were acquired by theft, then the original owner has no claim. Deference is given to the buyer because UCC rules state that unless there is a specific contractual agreement, the title passes to the buyer once the good is physically delivered or purchased (Cheeseman). The logic behind this ruling likely assumes that the entrustor is aware of risk when transferring the good to a merchant dealing in that kind of good. At the same time the buyer is protected as they conduct a purchase of good faith unaware of such potential risks.

A breach of contract occurs any time when a party in the contract does not perform to the terms that the sides agreed to entering the contract. In breach of contract, typically the plaintiff is only award compensatory damages, or money damages suffered as a result of the loss of the value of the contract. Courts do not assign punitive damages due to the assumption that parties enter into a contract aware of any possible risk that can be undertaken in the agreement and with good faith that the contractual obligations will be fulfilled (Cheeseman).

However, the UCC allows for parties to agree in advance in the contract as to what damages must be paid upon breach, known as liquidated damages. Liquidated damages are valid if reasonable that the breach will cause harm or create situations where proof of loss or adequate remedy is difficult to obtain (Cheeseman). However, it is up to the court whether to consider this clause, evaluating whether the liquidated damages clause is considered as punitive damages.

Works Cited

Cheeseman, Henry R. Business Law (10th edition). Pearson, 2018.

Chowdhry, Amit. Facebook Obtained Nearly $2 Billion From Legal Judgments Against Spammers. Forbes, 2014, Web.

Cinotti, David N., and Gary Stein. The Benefits of Arbitration for Business-to-Business Disputes. Pashman Stein Walder Hayden, 2018, Web.

Common Law and Uniform Commercial Code Contracts. Lumen, 2020. Web.

Ezell, Stephen, and Nigel Cory. The Way Forward for Intellectual Property Internationally. Information Technology & Innovation Foundation, 2019, Web.

Punitive Damages. Cornell Law School, 2020. Web.

Abstract

This essay elaborates An Alternative Dispute Resolution that I would apply among a group of learning members. For this situation, I identified mediation as the most appropriate ADR. Mediation is a framework or program specifically designed for solving disagreements between two or more people with the help of a volunteering third party, who is always an agreed choice of the conflicting members.

Because of its inherent characteristics, I found mediation to be the most appropriate for dispute resolution among learning members of the same class. The major goal of Mediation in Dispute solution is to provide a satisfactory solution to both aggrieved parties without compromising interests of any party. The rest of this essay elaborates more about mediation and gives a clause that learning members can use to resolve conflicts.

Introduction

Dispute resolution is always part of daily life among members living, learning or working together. Alternative Dispute Resolution (ADR) involves solving conflicts between two or more people out of court (Totaro, 2008, p.15). Many ADRs do exist but it requires people to assess the conflict at hand before seeking the best ADR technique to use.

Clause Description

The goal of mediation is to solve a dispute between two or more parties with the help of a mediator. The process of mediation is always informal and voluntary. This ADR is subject to disagreements between members of a learning team. It ensures that at the end of the process, both members are satisfied and without any feeling of negligence to any party.

Clause Design

In its design, this clause has various requirements. First, a mediator, (one or more individuals), should be present. S/he must be neutral and is always a choice of the disagreeing class members. The mediator can talk to the parties separately or together. During the mediation process, the mediators role is to help the disagreeing members to adjust their demands and make an agreement that benefits both parties.

S/he listens to each partys interests and helps them to reach a common ground. For effective working of this clause, the mediator should not impose solutions on the mediation process but should leave it to the disagreeing parties. This method is applicable for the entire course of study of such a group because no changes in learning group that can hinder its application. It only requires an agreement by both parties.

Conclusion

If people implement it properly, mediation is a good way of solving conflicts between two or more members of a learning group. The mediator should be a choice of both members in disagreement and should always maintain neutrality. At the end, no party should feel shortchanged as consensus is the final element of a mediation process.

Reference

Totaro, G. (2008). Avoid court at all costs. The Australian Financial Review, 5, 14-19.

Role-Play Critical Reflection

I. Reporting and Responding

I was tasked to watch and respond to a recorded mediation role-play. Mediation is a dispute resolution process that is employed to avert conflict between disputing parties (‘disputants’) over common resources through third party intervention (mediator) with the goal of improved communication, cooperation, and obtaining of efficient solutions.[footnoteRef:1] The role-play recording ran for thirty minutes with one mediator and two disputants. [1: Gerald Eisenkopf and André Bächtiger, ‘Mediation and Conflict Prevention’ (2012) 57(4) Journal of Conflict Resolution, 570.]

A facilitative model of mediation was utilized by the mediator which frames the negotiation around the parties’ needs and interests rather than their strict legal rights.[footnoteRef:2] This leads to an introduction to a wider scope of alternatives and possible resolutions.[footnoteRef:3] The mediator assisted the disputants in defining and arranging their concerns and make their own decisions to resolve issues with mutual interest in mind, thus the mediator can be termed as a facilitator.[footnoteRef:4] He engaged in a process which includes preliminaries, mediator’s opening, single party presentation, identifying common ground, defining and ordering issues, negotiation and decision making, separate meetings, drafting of decisions and packaging of offers, closing and termination. This process resembles the established procedural steps of mediation.[footnoteRef:5] [2: Laurence Boulle, Mediation: Principles, Process, Practice (LexisNexis, 3rd ed, 2011), 43-48.] [3: Troy Peisley, ‘Blended mediation: Using facilitative and evaluative approaches to commercial disputes’ (2012) 23(1) Australasian Dispute Resolution Journal, 26-35.] [4: Love, ‘The Top Ten Reasons Why Mediators Should Not Evaluate’ (1997) 24 Florida University Law Review 937, 939.] [5: David Spencer, Principles of Dispute Resolution (Thomson Reuters, 2016), 64-81.]

The dispute involved two businessmen in disagreement. Johnathan believes he is exploited by the firm for not having increased his return for the profit he brings to the company throughout the years of his employment. He also believes that Simon spends too much time away from work and the he makes secretaries work on less urgent matters as opposed to more productive work. Meanwhile, Simon is concerned about the reliability of Johnathan’s clients and how Johnathan is impossible to communicate with. He also believes that Johnathan intends to push him out of the company. The mediator emphasizes the significance of the mediation and how the main goal was to come up with a signed written document that could accommodate the interests of both Johnathan and Simon.

To ensure this was a successful facilitative mediation, it was vital for the mediator to only assist and leave the decision-making to the disputants themselves, to remain unbiased, and to find the disputants’ common ground.

II. Relating

Objectivity and impartiality are paramount attributes of an effective mediator.[footnoteRef:6] The VIA Survey of Character Strengths (‘VIA Survey’) showed that appreciation of excellence and skill in all domains of life is my top strength.[footnoteRef:7] This could mean that I see the worth and merit of differing opinions and perspectives which promotes fairness, a key component of disputant satisfaction.[footnoteRef:8] I have experienced in my personal life times when people I know are in disagreement or in conflict and I believe I uphold this fairness whenever they vent to me. I am a psychology student and have also been taught in that degree that to achieve successful communication, we must identify and validate the person’s feelings.[footnoteRef:9] I do similar things to what the mediator did in the recording. For example, he would say something like “So, what you’re saying is that you’re feeling a sense of frustration…”, recognising the emotion attached to the disputant’s concern which is important because emotions prompt conflict.[footnoteRef:10] [6: Charles B. Craver, ‘The use of mediation to solve community disputes’ (2015) 48 Journal of Law & Policy, 231-262; Hilary Astor, ‘Mediator neutrality: making sense of theory and practice’ (2007) 16(2) Social & Legal Studies, 221-239.] [7: VIA Institution on Character, VIA Survey of Character Strengths (2020) University of Pennsylvania ] [8: Shu-Cheng Steve Chi, Raymond Friedman, Mei-Yu Yang, ‘Are Supervisors Fair Mediators? The Effects of Personality Traits and Age Difference on Expected Mediation Fairness’ (2009) 37(1) Social Behavior and Personality, 59-71.] [9: Christopher W. Moore, The Mediation Process: Practical Strategies for Resolving Conflict (John Wiley & Sons, 4th ed, 2014), 256.] [10: James Duffy, ‘Empathy, Neutrality and Emotional Intelligence: A Balancing Act for the Emotional Einstein’ (2010) 10(1) Queensland University of Technology Law and Justice Journal 44, 45.]

Additionally, the VIA Survey revealed that critical thinking and open-mindedness are also my strong suit, which means I examine all sides and rely on evidence before I draw any conclusions.[footnoteRef:11] Whenever someone talks to me about a conflict with someone, I validate their emotion but do not agree nor disagree with their statements, similar to the mediator in the recording saying something like “… as I understand from… listening to you…”. To better gather evidence, I ensure to talk to one party at a time which could be described as a private caucus session. Private caucus sessions are confidential meetings held by the mediator with individual disputants to improve the probability of identifying more areas of agreement.[footnoteRef:12] By talking to one party privately, I am usually able to make them open up more about their positive interactions or common ground with the person they are in conflict with and assist them towards a decision that promotes developing improved relationship. [11: VIA Institution on Character, above n 7.] [12: Christopher W. Moore, ‘Practical Strategies for the Phases of Mediation’ (1987) 1987(16) Mediation Quarterly, 87-101.]

However, sometimes I personally find it difficult to maintain party self-determination, a consistent value in mediations.[footnoteRef:13] Party self-determination reserves the capacity to resolve the dispute to the disputants themselves, denoting party empowerment and autonomy.[footnoteRef:14] Occasionally, I offer my advice, which is usually requested. This is unlike the facilitative mediation method used in the recording and more like being a conciliator which is classified as a nondeterminative role with the capacity to offer suggestions and advice.[footnoteRef:15] Unfortunately, my inclination to find solutions myself attributes to the evaluative character of a lawyer,[footnoteRef:16] something that should not be followed in a facilitative mediation. [13: Laurence Boulle and Rachel Field, ‘Re-appraising Mediation’s Value of Self-determination’ (2020) 30 Australasian Dispute Resolution Journal, 96.] [14: Rachel Field, ‘A mediation profession in Australia: An improved framework for mediation ethics’ (2007) 18 Australasian Dispute Resolution Journal, 178.] [15: National Alternative Dispute Resolution Advisory Council, ‘Alternative Dispute Resolution Definitions’ (March 1997), 7.] [16: Marilyn Warren, ‘Should Judges be Mediators?’ (2010) 21 Alternative Dispute Resolution Journal 77.]

III. Reasoning

As aforementioned, three themes that are essential for a successful facilitative mediation are self-determination, impartiality, and finding common ground.[footnoteRef:17] How consistent the mediator in the recording was with mediation literature will now be considered. [17: Arghavan Gerami, ‘Bridging the theory-and-practice gap: mediator power in practice. (Colloquy Edition: Challenging the Dominant Paradigms in Alternative Dispute Resolution)’ (2009) 26(4) Conflict Resolution Quarterly, 433-451.]

1. Self-determination of Parties

Self-determination of parties is an important, guiding tenet of mediation practice.[footnoteRef:18] A mediator must structure the negotiation in a way that the capacity to reach decisions is reserved to the disputants.[footnoteRef:19] It is important to frame the mediation using problem-solving models that promotes client autonomy, meaning the disputants have complete control over communications and settlements.[footnoteRef:20] Without direct influence over decisions, the mediator highlights the parties’ agency over the negotiation.[footnoteRef:21] [18: Susan Douglas, ‘Neutrality, Self-Determination, Fairness and Differing Models of Mediation’ (2012) 19(2012) James Cook University Law Review, 19-40.] [19: Sir Laurence Street, ‘No Dispute on Mediation’s Value’ (1996) 7 Director 21, 22.] [20: Gerard Egan, The Skilled Helper: A Problem-Management and Opportunity-Development Approach to Helping (Cengage, 10th ed, 2012), 11-90.] [21: Carrie Menkel-Meadow, ‘Mediation, Arbitration and Alternative Dispute Resolution’ (Research Paper No 59, University of California School of Law, 2015) 2.]

The mediator in the recording made sure to note down the issues and concerns of both parties. He was able to maintain party self-determination by structuring the mediation around questions that they drafted around the issues and asking the disputants whether the questions accurately package such concerns. He also emphasises that the disputants could revise the questions to better suit their concerns if needed and that they could keep adding questions when they identify more issues. Because of this problem-solving method, the disputant themselves have authority over which issues they should address and how they would resolve them. Thus, they are predisposed to come to a conclusion together.[footnoteRef:22] As this method is a dominant and orthodox method in facilitative mediation,[footnoteRef:23] it can be gathered that the mediator in the recording successfully maintained party self-determination to that extent. [22: Nancy A. Welsh, ‘The Thinning of Self-Determining in Court-Connected Mediation: The Inevitable Price of Institutionalization?’ (2001) 6 Harvard Negotiation Law Review 1, 5.] [23: Dorothy J. Della Noce, Robert A. Baruch Bush, Joseph P. Folger, ‘Clarifying the Theoretical Underpinnings of Mediation: Implications for Practice and Policy’ (2002) 3(1) Pepperdine Dispute Resolution Law Journal, 39, 49.]

It is also recognised that mediators who are influenced by emotion decrease the extent of disputants’ self-determination.[footnoteRef:24] From my understanding, the mediator in the recording did not have personal feelings attached to any of the disputants’ concerns. Therefore, it can be determined that he maintained party self-determination. [24: Omer Shapira, ‘Exploring the concept of power in mediation: mediators’ sources of power and influence tactics’ (2009) 24(3) Ohio State Journal on Dispute Resolution, 1-35.]

B Impartiality

Impartiality is often characterized as a fundamental quality of effective mediators.[footnoteRef:25] Impartiality means untainted with favouritism, bias, or prejudice.[footnoteRef:26] A mediator must oversee the mediation in a reasonable, equitable and objective way.[footnoteRef:27] Additionally, a mediator shall decline a mediation if they could not conduct it impartially or even appear impartial, like acting with partiality based on a disputants’ personal traits, values and beliefs.[footnoteRef:28] [25: Yafei Zhang and Li Chen, ‘Exploration of factors leading to successful mediation: A regression analysis of reality TV mediation show episodes in China’ (2017) 28(1) International Journal of Conflict Management, 28.] [26: Shyam Kishore, ‘The Evolving Concepts of Neutrality and Impartiality in Mediation’ (2006) 32(2) Commonwealth Law Bulletin, 221-225.] [27: National Mediator Accreditation System, Part III: Practice Standards, (at 1 July 2015), 7. ] [28: American Arbitration Association (AAA), the American Bar Association (ABA) Section of Dispute Resolution and the Society of Professionals in Dispute Resolution (SPIDR), Model Standards of Conduct for Mediators (2005).]

I believe the mediator in the recording, for the majority of the mediation, did not favour one disputant over the other. He demonstrates empathy for both parties, verbally confirming their understanding of the disputants’ feelings and thoughts.[footnoteRef:29] A mediator showing empathy improves trust in impartiality and fairness of mediation.[footnoteRef:30] As previously mentioned, the mediator would say something like “I understand you feel…” and that evidently shows empathy which leads to instituting impartiality. Moreover, environment and setting also impact interactions between disputants.[footnoteRef:31] From the recording, it can be seen that they are seated around a table with the mediator seated between the two disputants to appear impartial from the start. However, I think this impression of impartiality was slightly diminished when he agreed with something Johnathan said, saying “Right, so tradition go as limitations”. In that moment, it seemed like, instead of just empathizing with Johnathan, he was agreeing with Johnathan. It could be a minor error, but it might also attribute to appearing partial based on disputant’s beliefs which could lead to him withdrawing from the mediation. [footnoteRef:32] [29: Charlie Irvine and Laurel Farrington, ‘Mediation and Emotions: Perception and Regulation’ The Emotional Dynamics of Law and Legal Discourse. Ed. Heather Conway and John Stannard. (Oxford: Hart Publishing, 2016), 211-240.] [30: Yafei Zhang and Li Chen, above n 25, 30.] [31: James A Wall and Timothy C Dunne, ‘Mediation Research: A Current Review’ (2012) 28(2) Negotiation Journal 217, 225.] [32: AAA, ABA, and SPIDR, above n 28.]

The mediator also employed caucusing, which increases the likelihood of reaching a resolution.[footnoteRef:33] This is because the mediator is allowed to discuss issues with a disputant in private. The mediator could reaffirm their impartiality and build a rapport so the disputants trust that an impartiality does exist.[footnoteRef:34] [33: Jean Poitras, ‘The Strategic Use of Caucus to Facilitate Parties’ Trust in Mediators’ (2013) 24(1) International Journal of Conflict Management, 23-29.] [34: Dieter M. Kolb, ‘To be a mediator: expressive tactics in mediation’ (1985) 41(2) Journal of Social Issues, 11-26.]

C Common Ground

[bookmark: _Hlk39674271]An imperative part of the mediation process is eventually finding common ground between the parties.[footnoteRef:35] The mediator is tasked with exploring the disputants’ interests by creating a collaborative atmosphere and noting both competing and noncompeting interests of the parties.[footnoteRef:36] In doing so, the mediator can generate the impression that the disputants’ interests are not actually in conflict,[footnoteRef:37] which is crucial since most disputants deem their problems as consequences of clashing concerns.[footnoteRef:38] [35: Bryan Hallows, ‘Finding common ground through mediation’ (2007) 29(1) In Practice, 51-52.] [36: Tim O’Shea, ‘Alternative dispute resolution: The mediation process’ (1999) 12(18) Canadian HR Reporter, 13-14.] [37: Rory Ridley-Duff and Anthony Bennett, ‘Towards Mediation: Developing a Theoretical Framework to Understanding Dispute Resolution’ (2011) 42(2) Industrial Relations Journal, 124.] [38: Ibid.]

From the recording, it can be gathered that the mediator was trying to encourage collaboration by encouraging both disputants to ask questions and correct his assumptions, but also by asking them questions to evoke positive answers about their company. He succeeded in exploring noncompeting interests by listing them down and eventually framing problem-solving questions around this common ground that could accommodate both disputants’ concerns.

Caucusing can also be utilised to discover common ground.[footnoteRef:39] However, this is ineffective if held directly after parties’ opening statements because of the lack of opportunity to examine concerns together.[footnoteRef:40] The mediator in the recording held separate meetings after the negotiation and decision-making stage. He was able to gather from Simon that was not entirely opposed to Johnathan’s increased partnership profit, as long as he feels secure with his position in the firm and he feels gratitude from Johnathan. He was also in agreement with Johnathan’s concerns on the review and secretarial priority. Subsequently, it can be stated that the mediator was successful in finding common ground. [39: Tara Sourdin and Nikola Balvin, ‘Mediation Styles and Their Impact: Lessons from the Supreme and County Courts of Victoria Research Project’ (2009) 20 Alternative Dispute Resolution Journal, 147.] [40: Warren, above n 16, 79.]

IV. Reconstructing

There are certain techniques and strategies that I gathered from the recording that I could employ in future disputes that I will mediate. For instance, although it is encouraged that facilitative mediators should be there to assist the disputants, that does not mean mediators are completely detached from the conversation. At first, I thought mediators should not be so involved in the dialogue and only let the disputants converse as they have the authority to make decisions, so I initially thought the mediator in the recording was talking too much. But he was only being proactive, establishing guidelines, stressing rules, reaffirming the disputants’ feelings and clarifying their points, which are all essential mediation strategies, especially in a highly intense conflict situation.[footnoteRef:41] While the dispute in the recording was not intense, Johnathan’s attitude while communicating could be described as emotionally destructive and we discover that from Simon’s private caucus session that he feels like communicating with Johnathan was impossible and the there is a sense of hurt as he feels betrayed when he initially thought of Johnathan as his own son. [41: Peter T. Coleman, Katharina G. Kugler, Ljubica Chatman, ‘Adaptive mediation: an evidence-based contingency approach to mediating conflict’ (2017) 28(3) International Journal of Conflict Management, 383-406.]

This also highlights the importance of private caucus for me. I believe, in the future, I should really take advantage of caucusing to build rapport with a disputant so that they may be more forthcoming with their thoughts, feelings, and even information. This will give me a better understanding of disputants’ competing interests which is integral to discovering mutual interests.[footnoteRef:42] Furthermore, this task also reminded me to keep my emotions in check and become as impartial as I can be. Ultimately, I believe I learned more about being a proactive, empathetic yet unbiased professional, something I hope to embody in the future as not just an effective mediator, but also a successful lawyer. [42: Roger Fisher and William Ury, Getting to Yes: Negotiating an agreement without giving in (Random House Books, 2nd, 1991), 23-31.]

Abstract

Karachi witnessed a third bout of organized violence from 2007–13. Contrary to press reporting, the violent event data for the city defies a ubiquitous spread of violence. Rather, violence dotted the landscape of some neighborhoods, with varying frequencies, leaving others out. The following research design aims to investigate this disparity in the spread of violence from the lens of political informality, instead of ethnicity or poverty. In this regard, non-state dispute resolution through political party offices is understood as a proxy for political informality in Karachi. Consequently, neighborhoods with higher incidence of violence are expected to demonstrate higher density of political party offices, and higher utilization of non-state dispute resolution. The objective is to make a dint at the meta-narratives of ethnicity and poverty to explain Karachi’s sporadic civil war through the micro-dynamics of the city’s violent informal governance.

1. Introduction

At 21 million+, Karachi accounts for over 10% of Pakistan’s total population and [more than] 42% of the country’s total death rate since 1980s (Gazdar & Mallah, 2013). It is the capital city of Pakistan’s Sindh province and has experienced three major waves of ‘ethnic’ violence from 1984–6, 1990–3, and 2007–13—the last two culminating in military and paramilitary operations aimed at eradicating armed militias from the city. Violence in the city has historically brought its different ethnic communities at loggerheads. Moreover, poor neighborhoods have seen a higher frequency of violence than their more affluent counterparts. Therefore, conflict dynamics in Karachi have been predominantly explored from the lenses of ethnicity or poverty (Gayer, 2014; Yusuf, 2012; Waseem, 1996; Haq, 1995; Wright, 1991; Engineer, 1987) despite their obvious limitations.

The explanatory potential of ‘poverty as a driver of violence’ is weak in Karachi’s context, given that as violence grew, it spread to several middle class neighborhoods as well (Gazdar & Mallah, 2013). On the other hand, a major deficiency of the ‘ethnicity’ argument lies in its inability to explain what Kalyvas (2003) calls the micro-dynamics of violence. For instance, the most recent spell of violence (2007–13) coincided with Karachi’s major political parties—PPP, ANP, MQM—forming a coalition government in Sindh. While ethnic elites in these parties periodically blamed each other for failure to curtail violence, they rarely mobilized racial sentiments against the ‘rival’ ethnic group from an official, party-level standpoint. Secondly, some of Karachi’s neighborhoods witnessed recurrent episodes of violence while others remained largely unaffected despite having mixed-ethnicity households. In other words, if violence was indeed ethnicity-driven, its concentration in a select cohort of mixed neighborhoods leaving out others with similar demographics makes little sense, unless more drivers of violence apart from ethnicity were present.

Another problem with the ethnicity/poverty argument relates to our opaque knowledge of violent offenders. Anyone remotely familiar with conflict dynamics in Karachi would know that violent incidents ranging from riots to targeted killings were almost always blamed on ‘unidentified persons’. When perpetrators remain unknown, many explanans are conjectured at best. Arguments are made for certain observable patterns implicating ethnicity, such as the killing of political workers from Party A followed by the killing of political workers from Party B, with each party representing two distinct ethnic communities. However, the overlapping of ethnic and political identities renders it difficult to decide whether a particular violent incident reflected inter-party, inter-ethnic, any other tension, or simply criminality. The ethnicity and poverty arguments hold factual substance especially if one were to consider the riots of 1984–6. Nonetheless, inculpating them as the main drivers of violence in Karachi in recent times seems far-fetched—especially under a demonstrated absence of clearly articulated ethnic interests by all parties involved, as well as a relatively broader prevalence of violence.

In this paper, I argue to locate the drivers of Karachi’s violence in the governance landscape of affected neighborhoods. In this regard, anecdotal evidence as well as some research accounts implicate criminality and non-state dispute resolution in fomenting violence. According to this perspective, the coercive resolution of disputes involving non-state armed actors (political parties and their proxies) lay at the root of most violent incidents. These disputes included (but were not limited to) criminality, especially bhatta collection . Therefore, whether violence was a result of non-state dispute resolution is a question worth addressing.

I borrow from literature on political informality and twilight institutions to formulate the argument on non-state dispute resolution in Karachi. In general, non-state dispute resolution prevailed in many formal, middle class neighborhoods of the city much the same way as in the poor, informal settlements. Therefore, the corresponding research design identifies two cohorts of most-similar, mixed-ethnicity formal and informal neighborhoods demonstrating comparable prevalence and/or scarcity of violence. All else being constant, differing violence levels in both neighborhood cohorts will be explained by analyzing variation in one indicator: prevalence of non-state dispute resolution.

2. Literature Review

2.1 Political Informality and Twilight Institutions

‘Formal institutions represent the baseline from which we evaluate the desirability of various outcomes’ (Tsai, 2007), yet informal institutions remain a vital clue to understanding political phenomena in non-Western societies (Radnitz, 2011). Informal institutions draw their persisting influence from their ability to sustain even when formal institutions may decline and change (Radnitz, 2011). In some societies, informal institutions can positively intervene to compensate for a fledgling state apparatus. Elsewhere they can kindle a dangerous void by ‘being impervious to the state’s reach and denying it coercive monopoly’ (Gazdar & Mallah, 2013). In this sense, it is debated whether formal rules and procedures, or informal codes of conduct, should be the theoretical baseline to study political processes (Radnitz, 2011).

Focusing on formal institutions may yield near-accurate results for advanced democracies where the reach and extractive capacity of the state has prevailed over patrimonial and kinship allegiances as well as private contract enforcement and traditional dispute resolution institutions. However, the inconsistent trajectory of democratization across cases means that many countries demonstrate a palimpsest of political institutionalization where informal institutions exist alongside formal institutions. Putnam (1994) even attributes regional variation in institutional development to the strength of informal institutions, like social capital. Although it is debatable whether social capital constitutes an independent institution or whether it is a proxy for other informal institutions (Radnitz, 2011; Voigt, 2013); nevertheless, the increased theoretical focus on informal institutions demonstrates the need to open new frontiers in the conceptualization of state and governance. Therefore, explaining or extrapolating political developments by taking formal institutions as the only baseline is flawed, especially in contexts where informal institutions tend to play a key role in affecting political outcomes. As the case of Karachi demonstrates, ‘informal politics is not a residual category of formal politics’ (Radnitz, 2011); rather, it is a system in its own right. In this sense, Lund (2000) problematizes the binary state-society divide to show a more fluid state-society dispensation, propelling new questions on the exercise of public authority in contexts where it is challenging to accurately pinpoint institutions along the formal-informal axis.

Diverging from the dominant rational-legal perspective on state formation and governance, Lund (2000) focuses on a heuristic development of the state enacted in everyday processual interactions between individuals. Lund (2000) contests the idea that public authority is only possessed by government institutions. Basing his arguments on some post-colonial African countries largely derided as ‘failed states’, he talks of contexts ‘where institutional competition is intense, and a range of ostensibly apolitical situations become actively politicized’ (Lund 2000), as organizations lacking the legal recognition of state but exercising legitimate public authority come to hold structural power and indulge in contentious claim-making. To precisely capture their murky character, Lund (2000) defines these organizations as ‘twilight institutions’. Lund (2000) also contests the idea of state failure in the presence of these ‘de facto public authorities’ that ensure service provision, particularly dispute resolution, the methods of which are questionable and may not be half as equitable, peaceful, or efficient as compared to the state’s. Like Gayer (2014) notes in his book on conflict dynamics in Karachi, the societal order in such contexts could be predicated on disorder, but the point is, it works, even if for a few. As a result, disputants may submit their claims or concerns to those ‘twilight institutions’ which they reckon as most capable of producing a satisfactory outcome (Lund 2000). Previous literature indicates the prevalence of a similar situation in Karachi. In this sense, an empirical investigation on political informality in the city can employ many proxies. Informal service provision is the most common. However, I use non-state dispute resolution owing to its potential to get violent since there are less formal restraints on all parties to resolve disputes peacefully.

3. The Context: Non-state Dispute Resolution in Karachi

Non-state dispute resolution is hardly an anachronism in Pakistan. In the more conservative rural and tribal regions of the country, dispute resolution is entrusted to the traditional jirgas and panchayats. These institutions have often made international headlines due to their controversial decisions. As a result, non-state dispute resolution has become more and more synonymous with rural and tribal culture with its prevalence in urban areas, especially in big cities like Karachi, going under the radar. Truth be told, non-state dispute resolution as well as informal service provision in general, was dispensed by all three major political parties of Karachi until 2013–14. They recruited an assortment of party workers, petty criminals, and mafia gangs for these tasks. The ‘wards’, ‘PAC’, ‘KRC’, ‘units’, and ‘sectors’—different political party offices—deeply resonate with Karachiites and are even deemed more efficient in virtually all governance areas than the teetering local government.

The ‘units’ and ‘sectors’ of the MQM were particularly popular. The MQM violently refused others to increase their footprint in the city, especially gatekeeping the predominantly Muhajir neighborhoods (Khan, 2016). Its growth into a de facto arbiter ‘successfully’ resolving both big and petty disputes at the neighborhood level was made possible through its utilization of coercion, eviction, and even murder of recalcitrant individuals, including its critics (Gayer, 2014). Other parties had also come to imitate the MQM’s template, often flexing their muscle to ‘help’ people, especially those distressed of the MQM’s excesses. However, this equation went both ways. The MQM also settled disputes for many individuals, particularly when other parties were involved. In this process, people would sometimes lose land, be kidnapped for ransom, or worse, killed. This fighting had two dimensions. On the one hand, party offices ensured distressed individuals (actual and potential voters) of their ability to protect by taking up their battles as seriously as their own. On the other hand, coercive action was a way for parties to send signals of strength to their adversaries. Gradually, political party offices effectively replaced the law enforcement apparatus of the state as they became the main sites of dispute resolution and grievance redressal in many neighborhoods (Baig, 2008). They dispensed their state-like expertise in coercive negotiation and action for an extensive array of issues ranging from civil and criminal disputes to employment and neighborhood uplift. As Baig (2008) in his work on the MQM notes, the MQM’s organizational structure was far more sophisticated than that of police. It explains why neighborhood issues, as well as other mishaps, were reported by both Muhajirs and non-Muhajirs to the local MQM leader, instead of the police. Muhajirs could take almost all of their concerns to the local party offices as well as the party headquarters where senior members of the MQM were available to them. Thus, the MQM became much more powerful than the government’s law enforcement apparatus.

Evidently, dispute resolution undertaken by party offices was far from peaceful as ‘justice’ administered by multiple de facto authorities struggling to prevail over each other, ‘claiming for themselves the right to punish, discipline [and tax], but also to protect, turned the city into a zone of contested sovereignties (Gayer, 2014).’ Thus, I expect violence to correlate with non-state dispute resolution in Karachi. Therefore, the higher the prevalence of non-state dispute resolution in a neighborhood, the higher the incidence of violence there. The null hypothesis excludes a relationship between the variables of interest. To reiterate, I focus on mixed-ethnicity neighborhoods. Ethnically homogeneous localities are out of focus here as I do not expect members of the same ethnicity, probably represented by the same party, to use violence against each other. The possibility definitely exists; moreover, if not against each other, their propensity to use violence on politically unaffiliated members of the neighborhood cannot be dismissed. However, this issue is beyond the scope of my research design.

Abstract

Alternative Dispute Resolution (ADR) is a method of resolving disputes without any type of litigation. The purpose behind ADR is to allow parties to a dispute and settle their differences by agreement and discussion. Letting individuals/parties actively participate in and have control over the process of the solution helps in the method of ADR. I am a social worker and we have major responsibilities in managing conflict in a productive manner. Every day social workers are involved in conflict resolutions. If it is advocating for clients, delivering services to clients, resolving conflicts in the work setting, or dealing with conflict within an organization. When social workers have to go to court they serve as fact witnesses, expert witnesses, or parties involved in lawsuits. When litigations are involved social workers seek other ways to resolve disputes. If not, litigations can be costly and time-consuming.

Alternative Dispute Resolution (ADR) in Healthcare

Patient safety and the prevention of any medical errors is sought out to be the main goal by all in the healthcare profession. Often times there are however, bad outcomes that may occur causing; there to be disputes over “how” and “why” and this can be resolved through litigation. Physicians want to avoid letting the patient or patients family know the exact harming effects that may have happened. This then leads to patients using malpractice claims in order to obtain the information that may help explain what the outcome was. There has been one method introduced in health care to avoid litigious approaches and that is Alternative Dispute Resolution (ADR). Healthcare systems that are already using the ADR approach say that it meets the needs of both patients and the providers along with additional benefits such as; reduced costs, encouraging disclosure, and improving patient safety (Balcerzak & Leonhardt, 2009).

The public now has views of increasing the awareness of patient safety. This would include; the demands for transparency of medical errors, significant costs, complexity, and the volume or malpractice cases. This has made a way for utilizing different methods for conflict resolution. Using ADR is a way to provide a more effective, timely, and less costly approach for providers and patients in order to deal with unfavorable events. ADR makes reference to any means of settling disputes outside of the classroom. This usually includes; arbitration, mediation, early neutral evaluation, and conciliation. Mediators are used to act as neutrals to help reconcile each party’s differences before they proceed to arbitration or litigation. Arbitrators are used to act as a neutral third party to hear the evidence and decide the case. Many healthcare systems have stated to use ADR programs to help with the increased court cases, the rising costs of litigation, and the litigation time delays (Balcerzak & Leonhardt, 2009). The bible says in 1 Peter 5:7 (King James Version) “Casting all your care upon him; for he careth for you” (BibleGateway, 2019).

ADR growth can be measured by many different indicators. One of the most telling indicators is the substantial escalation of ADR use in various industries. Out of all the industries where ADR use has increased, the healthcare industry has seen one of the most escalations of use. Even if we think of claims lodged by patients against medical providers or disputes among increasingly complex healthcare organizations, the trend is indeed pronounced. Many events serve as a testament to the increasing interest in ADR within the healthcare community. A few of these are the creation of the American Bar Association Section of Dispute Resolution’s Healthcare and ADR Committee which is; a medical ADR dispute resolution protocol that was adopted by the ABA, the American Medical Association, and the American Arbitration Association; and there is a discussion of ADR in the Handbook on Managing Conflict in Healthcare Organizations that was published by the American Hospital Association and the CPR Institute for Dispute Resolution. A panel of Connecticut Bar Association healthcare and ADR experts have reviewed the causes and suggestions of this occurrence at a joint meeting of the Dispute Resolution and Health Law sections (Mazadoorian, 2016). The bible says in 3 John 2 (King James Version) “Beloved, I wish above all things that thou mayest prosper and be in health, even as thy soul prospereth” (BibleGateway, 2019).

It is helpful and also useful to recognize that healthcare, as a social system, has a number of characteristics that make it less easy in using dispute resolution and conflict management (DR/CM) approaches in order to help solve problems. Healthcare has been described as a complex adaptive system. It is also largely characterized by fluid linkages, flexible rules heavily reliant on system history, constant change, a huge volume of data, and multiple feedback loops but limited access to others information. Normally this kind of system is susceptible in generating more errors then being more innovative than other types of social structure. This system is harder to understand due to the complexity of the system (Morrison & Robson, 2019).

The characteristic of healthcare is very widespread inequalities and imbalances of power, knowledge and control. There are a few other social systems that have many imbalances. The inequalities are obvious between healthcare providers and patients, but they are also present between groups of providers such as; doctors and nurses, types of providers (primary care versus specialist care or curative versus preventive orientation), between payers and management as well as between management and providers (Morrison & Robson, 2019).

There is also a feature of healthcare which are widely divergent “cultures” and value systems of the various professional and non-professional groups working within the system. It is relatively easy to see that patients and their families look at the clinical problem through very different eyes than their healthcare providers do. The orientation of physicians differs so much between most nurses. If we were to look at a healthcare error and ask how it could be understood by a physician, a nurse, a social worker, a pharmacist, a risk manager, a CEO, a lawyer, and a patient, we would get different perspectives from each of these individuals (Morrison & Robson, 2019). The bible says in Chronicles 15:7 (King James Version) “Be ye strong therefore, and let not your hands be weak: for your work shall be rewarded” (BibleGateway, 2019).

Disputes that go on between parents and school personnel are an unfortunate and often costly reality in special education. Congress has set forth formal procedures and mechanisms for dispute resolution. This initially happened in 1975 with the Education for All Handicapped Children, then again in 1990 with the Individuals with Disabilities Education Act (IDEA), and most recently with the 1997 and 2004 versions of IDEA. Interest has grown particularly in how dispute resolution processes contribute to parent–school relationships that effectively support student-centered educational service planning. A broad outlook of appropriate dispute resolution (ADR) procedures has come out, adding a range of less formal preventative processes to the required formal legalistic procedures. Many states and school districts have tried new strategies to prevent conflict from escalating and to manage disputes as they arise (Reiman, Beck, Peter, Zeller, Moses & Engiles, 2009).

New processes have expanded and older processes have been reconsidered, questions have appeared about “what works” and about the research base that informs the policy, system design, practice, practitioner training, and consumer choice. There are websites, brochures, monographs, conference proceedings, essays, and opinion papers that describe the formal and informal processes. This article best describes the literature search process to identify research in ADR and special education. It organizes some initial search results, summarizes them, and raises important questions for the purpose of future research. The authors wanted this literature of special education and ADR to provide a starting point for the future investigations in service of children with disabilities, their families, and the professionals who work with them (Reiman, Beck, Peter, Zeller, Moses & Engiles, 2009). The bible says in Hebrews 11:1 (King James Version) “Now faith is the substance of things hoped for, the evidence of things not seen” (BibleGateway, 2019).

Alternative dispute resolution is a modern approach to cost effective dispute resolution which has been gradually spreading from its traditional realm in commercial law to other private law areas. Many of its traits have including confidentiality and emphasis on mutually acceptable solutions which seem to be suitable for medical negligence disputes. ADR represents a wide variety of techniques towards finding solutions to the disputes between parties without costly and long court procedure. The term ADR has no consensually agreed definition. We have considered the following components of the ADR definition as; the existence of dispute between two or more parties, related to civil legal rights and/or duties, which might be resolved in litigation before the court, based on the choice of parties, is resolved through a different process, which is essentially confidential, and involves independent individuals who bring a certain level of objectivity to the process. ADR techniques are diverse and many, varying among different jurisdictions. They generally include negotiation, mediation, conciliation, or arbitration. It also includes complaints and grievance procedures, ombudsman procedures, dispute-resolution board procedures, expert intervention and others (Sustek & Holcapek, 2018).

ADR has represented a variety of techniques aiming to find solutions to the disputes between parties without costly and long court procedure. The term ADR may be identified by several features which interconnect with techniques and may serve as a kind of complex definition of the concept. We may consider the following components of the ADR put in to several different definitions: 1) the existence of dispute between two or more parties, 2) related to civil legal rights and/or duties, 3) which might be resolved in litigation before the court, 4) but, based on the choice of parties, is resolved through a different process, 5) which is essentially confidential and 6) involves independent individuals who bring a certain level of objectivity to the process. ADR techniques are diverse and different among jurisdictions. They generally include negotiation, mediation, conciliation, or arbitration, but also complaints and grievance procedures, ombudsman procedures, dispute resolution board procedures, expert intervention and others. In the United States, pretrial screening panels are a popular aim to determine the chances of the parties in litigation in medical malpractice cases (Sustek & Holcapek, 2018). The bible says in Galatians 6:10 (King James Version) “As we have therefore opportunity, let us do good unto all men, especially unto them who are of the household of faith” (BibleGateway, 2019).

Analysis

I have learned several things about ADR not only within the healthcare system but also within my profession of social work. Alternative dispute resolution is about resolving disputes which can happen in many different ways. After reviewing the literature about ADR I have come to the conclusion that disputes are happening everywhere; in healthcare, social work, any job or company, with individuals who have arguments, anywhere. The rest of my research paper is going to lean towards the direction of where ADR leads social workers and healthcare providers and how it helps and how it does not.

References

1. Balcerzak, G. A., & Leonhardt, K. K. (2009). Alternative dispute resolution in healthcare. Retrieved from https://www.psqh.com/julaug08/resolution.html
2. BibleGateway. (2019). Retrieved from https://www.biblegateway.com/passage/?search=KJV.
3. Mazadoorian, H. (2016). A discussion about alternative dispute resolution in the healthcare field. Retrieved from http://rc.com/documents/April06_ADR in Healthcare.pdf
4. Morrison, G., & Robson, R. (2019). ADR in healthcare: The last big ADR frontier? Retrieved from https://www.mediate.com/articles/robmorr1.cfm
5. Reiman, J., Beck, L., Peter, M., Zeller, D., Moses, P., & Engiles, A. (2009, April). Initial review of research literature on appropriate dispute resolution (ADR) in special education. Retrieved from https://files.eric.ed.gov/fulltext/ED498823.pdf
6. Sustek, P., & Holcapek, T. (2018, August 6). Alternative dispute resolution in medical malpractice disputes. Retrieved from https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3213596

On behalf of Horace Rumpole & Co Solicitors, I am writing to you to explain the situation you are currently in with Mr Bolton of UHL Dispatch & Delivery Ltd. I will be explaining all your possible options which include going to court and the pre-action procedure we must go through with or taking the alternative dispute resolutions method.

Explanation of the contract

Firstly, I will go through the contract you entered with Mr Bolton and any possible breaches that have happened. A contract is a legally binding promise (written or oral) by one party to fulfil an obligation to another party in return for consideration.[footnoteRef:1] For a contract to become binding, it must have four parts to it and they are, offer, acceptance, consideration and intention to create legal relations. [1: Practical Law, ‘Thomas Reuters Practical Law’ (Glossary, 2019) accessed 10 December 2018]

An offer is a statement of a person’s intention to be bound by the terms made and the intention to contract with the offeror.[footnoteRef:2] Mr Bolton first placed it in the local newspaper. However, at that point, it was not an offer at the point, but an invitation to treat.[footnoteRef:3] It did not become an offer until you wrote back to the advert. [2: Chris Turner, Unlocking Contract Law (4th edition, Routledge 2014) 14] [3: Ibid 16]

After writing back to the advert, Mr Bolton had accepted your request and had given you the job. Bu signing the contract, you had agreed to the terms of it meaning an agreement was in place. That means that you had accepted that within 4 weeks, you would upgrade his 30 vans and in return you would get £550 plus VAT per van. So, should you have completed this task on time, Mr Bolton would pay you £19800. That would be considered as the considerations. It is considered as considerations as the case of Currie v Misa (1875) defined it as “some right, interest, profit or benefit accruing to one party, or some forbearance, detriment, loss or responsibility given, suffered or undertaken by the other.”[footnoteRef:4] In this case, Mr Bolton’s benefit is his 30 vans being upgraded but he is suffering the loss of £19800. [4: Currie v Misa [1875] 2 WLUK 24]

Finally, for a contract to become binding there must be a clear intention to create legal intentions. For this to happen, it must mean that if one party fails to uphold their part of the deal, they are liable for a breach of contract. Also, this deal was of a business arrangement and not of a social one, meaning that this was not two friends doing a deal as that would not make it legally binding but two companies doing business. With all of the requirements of a contract met, the contract is a legitimate contract and its obligations must be met.

However, there has been a breach of contract on your part as you failed to meet the deadline as you are four weeks overdue and only completed half of the vans. That would mean that you are liable to be sued by Mr Bolton for the breach of contract and he would be claiming damages or to even terminate the contract. Mr Bolton seems more likely to do the latter as he is in a rush to get the vans fixed otherwise his contract with Global Network and Delivery Ltd will be terminated so he will need another company to quickly fix his van within the month he has left.

If Mr Bolton were to sue you, we would have to get ready to go through the whole court procedure, which also included a pre-action procedure we would have to go through. Furthermore, going to court would have to be a last option for us because with all the evidence against us, we would most likely lose and you would have to pay any damages Mr Bolton is awarded.

Court Process

As this is a case between two individuals and not against the state, it will be a civil case and we would be going through the civil courts. The court that will hear our case would be the County Court. This is because the County Court retain almost an unlimited jurisdiction on contract cases which we are involved in.[footnoteRef:5] After, the County Court will send out a questionnaire called an allocation questionnaire. This will help the judges to decide what kind of track this case will go through. Seeing as Mr Bolton was going to pay you £19800 for all 30 vans to be repaired on time, the case will be a fast track case as it is between £10000 and £25000. This questionnaire must be filled accurately and on time otherwise the judge will impose a penalty.[footnoteRef:6] In a fast track case, you are allowed legal help and under our company’s policy, we have a ‘no win, no fee’ policy if the amount is under £25000. However, that does not exempt you from paying any legal help Mr Bolton may get if we are to lose the case. On the other hand, if you were to win, you could get Mr Bolton to cover your court costs. [5: Gary Slapper, David Kelly, The English Legal System (18th edition, Routledge 2017) 261] [6: HM Courts and Tribunals Service, ‘The Fast track the Multi-Track in the civil courts’ (HM Courts and Tribunals Service, 2014) accessed on 11 December 2018]

Even though we would not want to go to court because we would almost certainly lose the case, it does have some positives. One positive is that if this was to go to trial, the court would give us a trial date week in advance. That would allow us to gather couple pieces of evidence, such as the contract you had signed. Along with the contract, we could potentially use the fact that you only had four weeks to complete this difficult task even though Mr Bolton’s contract with Global Network and Delivery Ltd is not due for another month meaning he did not give enough time for your company to fix all 30 vans. Another advantage that we have is that the 15 van that you had managed to fix, Mr Bolton and you were both satisfied with the jobs done suggesting that you can get the other half completed if you just had a bit more time.

Even though there are positives, there are still negatives of going to court. One would be that the evidence against us is quite severe as the contract had explicitly stated that you had to fix all 30 vans within 4 weeks otherwise there would be a penalty which is why you are not even being paid for the 15 you have completed.

A second negative would be that court cases are public and everyone can access them. That would show that your company can not deliver on time which would mean that businesses would not come to you to repair their cars as they would not get it when they need it. That would then take an impact on your company which is already in financial trouble.

Thirdly, if the judge were to side with Mr Bolton, they could order you to pay for damages due to the breach of contract which would be one remedy as it would compensate for the loss Mr Bolton has endured.

Luckily for us, we would not be going to court straight away as nowadays, the courts would prefer us to go through different ways of resolving issues like this. This is because there is a pre-action procedure under the Civil Procedure Rules. This means that we would probably have to go through Alternative Dispute Resolutions.

Alternative Dispute Resolutions

Alternative dispute resolutions are a way of resolving disputes without going to court. It is a non-court procedure that involves a third party with a binding outcome on both parties.[footnoteRef:7] There are several forms of alternative dispute resolutions, such as mediation, arbitration, tribunals etc. Also, alternative dispute resolutions tend to be private and so it will not affect your company’s reputation. [7: Nigel Broadbent, ‘Alternative Dispute Resolution’ (2009) Legal Information Management 196]

Alternative dispute resolutions are used because the courts are recommending it. They believe that the parties involved should make the decision in cases like these as it should not eat up the courts time. This is because the courts have limited resources and are scarce and they would not get the time to hear all civil cases that are resolvable by the two parties talking to each other.[footnoteRef:8] So the courts have decided it be best for alternative dispute resolutions be used as they can get to the root of the problem and find a solution that works best for everyone involved. [8: Shirley Shipman, ‘Court approaches to ADR in the civil justice system’ (2006) Civil Justice Quarterly 181]

One alternative dispute resolution method is mediation. It is the most common and basic form of ADR. It involves a mediator, who is a neutral third party with no decision powers. All the mediator’s job is to do is talk with both parties and try and get them to find a common ground to settle on. It has a high success rate, with settlement rates tend to be 80% meaning that mediation works extremely well.[footnoteRef:9] [9: Nigel Broadbent, ‘Alternative Dispute Resolution’ (2009) Legal Information Management 196]

Also, with mediation, you most likely will not need any legal help as mediation tries to bring the two together and move on, not bring evidence against each other to prove who is in the right. This would be helpful for you as you could explain to Mr Bolton, in your own words, how you really feel about this job and how you need more time and how without this job, your company will probably go bankrupt.

With Mr Bolton being a close friend of yours for years, he would probably understand and be willing to meet you halfway by allowing you more time as he has seen the quality of work you produce so he already has trust in your skills. Also, what mediation, and alternative dispute resolutions, does is allow to maintain a friendship to exist afterwards and going to court will probably sever all your ties with Mr Bolton and years of friendship is gone after a misunderstanding like this.

A major negative of mediation is that as it is not a formal procedure, there can be a lack of cooperation from one or both parties. That would just lead to the mediator not being unable to find a common ground leading to a failed mediation. With this is mind, when the judge finds out that one or both parties have refused to cooperate unreasonably may potentially heavy sanctions at the end of litigations.[footnoteRef:10] So it would be in your best interest to attend all the mediation sessions and do what is required of you so the judge is not upset with you without even hearing the case if it does go to court. [10: Nigel Broadbent, ‘Alternative Dispute Resolution’ (2009) Legal Information Management 196]

A third form of alternative dispute resolution would be conciliation. It is quite similar to mediation where the two parties put their dispute in front of a conciliator. It is just as flexible and confidential as mediation. However, the main difference between the two is that at some point in the session, the parties will ask the conciliator to come up with a non-binding settlement proposal.[footnoteRef:11] This is something a mediator would not do as the mediator is not supposed to be involved in the decision making but just to bring the two parties to a common ground. [11: Dispute Resolution, ‘What is Conciliation’ (Dispute Resolution Hmaburg.com, 2017) accessed 10 December 2018]

Another form of alternative dispute resolution is arbitration. Arbitration is seen as very similar to litigation. The two parties will decide on a neutral arbitrator who will hear all the facts of the case. Once the arbitrator hears the facts, they will decide on an outcome called the ‘award’ that will be enforceable and binding to both parties. This is because the arbitration is governed by statute.[footnoteRef:12] Unlike mediation, the procedure for arbitration is very formal as it is closer to a court hearing. That would also mean that you can use solicitors to help argue your point of view and bring evidence for the arbitrator to look at. [12: Arbitration Act 1996]

One thing that distinguishes arbitration from litigation is that the outcome will be private and not public so no one will know about this but just like going through court, the friendship you and Mr Bolton have will no longer exist as this will lead to you both pointing blame at one another. Another distinguishing difference between arbitration and litigation is that the arbitrator is someone both parties feel comfortable with deciding and will not have any bias towards any one party whilst also having both parties’ interest in mind where as a judge just looks at the facts and comes to a decision without considering how each party would feel. Arbitration may not be our ideal choice for alternative dispute resolutions but its better than court as it will be private and your reputation is not tainted.

Lastly, one final form of alternative dispute resolution would be negotiations, where you and Mr Bolton talk it through and come to an agreement. This is extremely similar to mediation but negotiations would not require a mediator or a third party to intervene, it is strictly between the two parties and their representatives. What a negotiation can do is to possibly make a new contract that will give you enough time to repair the vans and get enough men to teach how to fix the vans in a manner that is acceptable. Also, you could have us read through it to see if there are any potential penalties should you not complete the task again which you may not have found or read like last time when you did not read the contract properly.

Advantages of Alternative Dispute Resolutions

Overall, alternative dispute resolutions have several advantages over going to court. One would be that it is extremely flexible. It is flexible by finding solutions that are good for all and they are happy with what they left with. This can not happen in a court as there will always be a loser. That would be a problem with this case as if the court ordered you to pay for damages and you can not afford them, then you and Mr Bolton both went to court for noting and Mr Bolton would also be a loser in the long run as he would lose his contract with Global Network and Delivery Ltd meaning that it was all for nothing.

Another way it is advantageous is that it saves a lot of time compared to going to court. This is because if we were going to court, we would have to wait for a court date and then once trial begins, it might not be settled until years later as the courts are currently overloaded and already have limited resources so it will take a long time for this civil case to be dealt, especially as this is not a famous one with lots of media attention. The one things Mr Bolton has not got is time as he needs his vans repaired within the month otherwise, he has lost a job. What alternative dispute resolutions can do is find a solution that would take couple days, maybe a couple weeks for both parties to agree on. This is very helpful for the parties as civil action cases are stressful and dealing with the issue swiftly can get rid of the unwanted stress.

Thirdly, a lot of money is saved due to not paying for court costs or even fees for lawyers.[footnoteRef:13] As alternative dispute resolutions are there to be informal and to get the two parties talking, no one is being paid for services as it is all about the two parties. That would mean that lawyer assistance is not really necessary as it is just a discussion between you and Mr Bolton, however we are here if you do need our services. [13: Local Court, ‘Benefits of alternative dispute resolution’ (Local Court, 20 February 2015) accessed 13 December 2018]

Also, the fact that alternative dispute resolutions are private is quite important for it to work.[footnoteRef:14] That would mean that for sensitive topics, alternative dispute resolutions can be used so that the public cannot be involved and be judgemental. It is supposed to be a place where common ground is meant to be found and public interference would only jeopardise that. [14: Ibid]

What alternative dispute resolutions do is that it maintains relationships. Instead of allowing people to argue and battle each other, they try to make them cooperate and work with each other. This is because alternative dispute resolutions are there so that both parties can leave with being happy with the decision that was made. This is to show that alternative dispute resolutions are there to not make enemies by making someone a winner and another a loser but maintain friendships and not burn bridges.

Another advantage is that with alternative dispute resolutions, people tend to settle.[footnoteRef:15] This will show that alternative dispute resolutions work very effectively and that there should be no reason as to why the parties should not want to cooperate as it will help them both. When it comes to alternative dispute resolutions, settling will allow for a good compromise that you would not get if you were to go to court. [15: Ibid]

Furthermore, alternative dispute resolutions tend to be more about what is fair and what is legally correct. Even though they try to uphold the law, alternative dispute resolutions try to get the two parties to communicate and compromise on a deal that seems both fair and right.

Lastly, an advantage that alternative dispute resolutions has is the use of the neutral third party. The third party who acts as the arbitrator, mediator or conciliator would probably be a lawyer.[footnoteRef:16] This would mean they have some sort of legal expertise within the law the dispute covers. That would beneficial to the whole process as it would give them better information on the facts and how to handle, meaning that the solution they have made would be one that is legally sound and fair to both parties. [16: Patrick O’Connor, ‘Alternative dispute resolution: panacea or placebo?’ (1992) Arbitration 58(2)]

Disadvantages of Alternative Dispute Resolutions

Even though alternative dispute resolutions have extraordinary positives, it does also have its problems. A negative being that alternative dispute resolution does not always bring a guaranteed resolution.[footnoteRef:17] This is because even though there is an 85% settlement rate, there is still a 15% of the process failing and it will still go to litigation. That would mean that both parties had invested time and money into a failed process and now they have to spend even more money and potential legal aid for court. [17: Michael J Coyle, ‘ADR Disadvantages’ (Lawdit Solicitors, 16 February 2013) accessed 13 December 2018]

Also, a disadvantage of alternative dispute resolutions would be that decisions are final. As they are not heard in court, the decisions are binding and non-appealable meaning that whatever decision is decided, it can not be argued and so even if the parties do not feel the award was a good one, there is nothing that they can do or complain to as no appeals can be made.

Whilst the major distinction between arbitration and alternative dispute resolutions is the arbitrator, they should be neutral and try to hear the facts whilst giving a fair award. However, recently parties have been given awards that neither is happy of so there will be a feeling of disenchantment with the use of alternative dispute resolutions as they will be thinking that it would have been better to go to court instead.[footnoteRef:18] [18: Patrick O’Connor, ‘Alternative dispute resolution: panacea or placebo?’ (1992) Arbitration 58(2)]

Another disadvantage with alternative dispute resolution is that you have no idea if the other party is going to cooperate. That would mean that if one party is adamant on going to court, they would see the alternative dispute resolution process a waste of time and just avoid it. That would make the neutral third party’s job complicated as it would only mean only one person is being helpful so it wastes of everyone time. This is done by one party using delay tactics to try and frustrate the other party and wanting to quickly end it by giving what they want and going to court.

When it comes to alternative dispute resolutions, especially the arbitration awards, it can only be resolve with money. This is a disadvantage as one party may not want to be compensated with money but with what they have lost and the arbitrator has no way of compelling one party to do that.[footnoteRef:19] [19: Mark Albright, ‘The Advantages |And Disadvantages Of ADR’ (Albright, Stoddard, Warnick and Albright, 21 September 2012) accessed 13 December 2018]

Unlike litigation, alternative dispute resolutions do not follow a system of precedent. This would mean that each case is unique and previous dispute resolutions will not influence the current dispute. This makes it so that there are no guidelines for future cases even if they are similar so there will be uncertainties and inconsistencies. This happens due to the fact that alternative dispute resolutions are private meaning that there is no way for people to know the resolutions of past cases or even know the facts meaning that there will never be a way for precedent to be set unless alternative dispute resolutions become public.

The neutral third party could be a problem of alternative dispute resolutions. As they are most likely lawyers and experts in the field, they could be more involved than originally intended. That could mean that they are not acting in the responsibility they have been given. A neutral third party must act to bring the parties together to reach a decision and reach their own decisions on facts and merits of the case.[footnoteRef:20] [20: Patrick O’Connor, ‘Alternative dispute resolution: panacea or placebo?’ [1992] Arbitration 58(2)]

Conclusion

Overall, our best chance to resolve this issue between you and Mr Bolton would be to take the alternative dispute resolutions method, specifically mediation. It would be a good chance for you and Mr Bolton to talk about the problems you both have and how you can help each other out. This would be able to succeed as you have been friends for a long time now and both of you would not want it end.

With everything outlined, mediation would probably allow you to get the deal you want, which is more time, however you must accept that Mr Bolton might want to take knock down the original payment owed as you have failed to deliver on time and has led to this dispute. Also, as a sign that you are willing to accept your mistake, an apology might be one thing to say to Mr Bolton as he did give you the job and you are grateful for him giving it to you. So, I hope you and Mr Bolton both find common ground and resolve this issue whilst maintaining a healthy friendship.

Bibliography

Table of Cases

1. Currie v Misa [1875] 2 WLUK 24

Table of Legislation

1. Arbitration Act 1996

Table of Books

1. Turner, Chris, Unlocking Contract Law (4th edition, Routledge 2014)
2. Slapper, Gary, and Kelly, David, The English Legal System (18th edition, Routledge 2017)

Table of Articles

1. Broadbent, Nigel, ‘Alternative Dispute Resolution’ (2009) Legal Information Management 196
2. Shipman, Shirley, ‘Court approaches to ADR in the civil justice system’ (2006) Civil Justice Quarterly 181
3. O’Connor, Patrick, ‘Alternative dispute resolution: panacea or placebo?’ (1992) Arbitration 58(2)

Table of Websites

1. Practical Law, ‘Thomas Reuters Practical Law’ (Glossary, 2019) accessed 10 December 2018
2. HM Courts and Tribunals Service, ‘The Fast track the Multi-Track in the civil courts’ (HM Courts and Tribunals Service, 2014) accessed on 11 December 2018
3. Dispute Resolution, ‘What is Conciliation’ (Dispute Resolution Hmaburg.com, 2017) accessed 10 December 2018
4. Local Court, ‘Benefits of alternative dispute resolution’ (Local Court, 20 February 2015) accessed 13 December 2018
5. Michael J Coyle, ‘ADR Disadvantages’ (Lawdit Solicitors, 16 February 2013) accessed 13 December 2018
6. Mark Albright, ‘The Advantages |And Disadvantages Of ADR’ (Albright, Stoddard, Warnick and Albright, 21 September 2012) accessed 13 December 2018

Literature review

In today’s world more than 07 billion human beings living on this planet they are divided in several regions countries and within countries there are several different languages, races, ethnicities religions and several other segments depending upon which part of the world we are discussing. The difference in Human society on any basis could become the foundation of disagreement which could lead to a dispute and later a conflict this difference could be on the clash of interest, values, culture or difference in norms.

It is important to differentiate between a conflict and a dispute. According to Burton (1990) a dispute is a short-term disagreement that can result in the disputants reaching some sort of resolution; it involves issues that are negotiable. Conflict, in contrast, is long-term with deeply rooted issues that are seen as “non-negotiable”. Basically there are many other ways in which it can be explained. Additionally, conflicts could be between two different individuals, between a man and society or a group, sect, race ethnicity, religion, region etc. Murdoch and Hughes (2008) explain that disputes occur because ‘people are interacting in some way’. In other words dispute can also be considered as disagreement or argument where two or more parties fail to agree over any mutually acceptable point. This disagreement could be a verbal controversial disagreement an altercation debate publically which normally occurs between contesting politicians and parties having opposing views, claims or in general different way to react or behave to a certain situation or problem resulting in disagreement or dispute it could possibly be clash of interests clash of values or cultures.

The Law Reform Commission (2010) explains the process of Alternate dispute resolution as: “A broad spectrum of structured processes, including mediation and conciliation, which does not include litigation though it may be linked or integrated with litigation, and which involves the assistance of a neutral third party and which empowers parties to resolve their own disputes”

The process of alternate dispute resolution is an orchestrated confidential process that includes mediation and conciliation not inclusive of litigation it normally occurs with the help of neutral, impartial independent third party. In the initial stage of dispute resolution the decision reached does not bind parties legally to follow it; Alternate dispute resolution is a facilitative process where an agreement or settlement is encouraged by neutral third party in the mutually agreeable way by involved parties.

Advantages, disadvantages & Critical Analysis of Alternative Dispute Resolution:

Alternate dispute resolution is a private and confidential process normally used to avoid court proceedings or litigation process which is more time-consuming and lengthy and have other complications in terms of enforcement of decision. (Ashworth et al. 2013, Cited by Cunningham 2015) mentioned following advantages of alternate dispute resolution. “Private – Confidentiality is retained. Speed – A matter of days rather than weeks, months or even years. Economy – Legal and other costs resulting from lengthy litigation are avoided. They argue that goodwill is a vital ingredient on both sides to settle the matter on a commercial rather than a litigious basis. If this goodwill does not exist, then the parties have no option but to resort to arbitration or the courts, without wasting further time and resources.”

(Kwayke 1993, Cited by Cunningham 2015) further argued about ADR that it is conducted in a private place the initiation form both parties is voluntary. An informal hearing in front of a neutral third party where the disputants negotiate to reach a settlement if both parties agree an acceptable settlement then they follow up the procedure to implement a settlement otherwise in case of dissatisfaction it’s their own disposal to go for arbitration. Alternate dispute resolution as mentioned above is a structured but quick process as compared to court hearings or litigation or arbitration it saves time and costs both.

In contrast to The Law Reform Commission’s (2010) explanation about Alternate dispute resolution, the law society in their guide of alternate dispute resolution mentions about more than a few ways or methods of solving disputes which includes but not limited to mediation, conciliation, arbitration, adjudication, expert determination (Lawsociety 2018)

According to law society guide to alternate dispute resolution, mediation can be explained as, “Mediation is a private and confidential dispute resolution process in which an independent third party, the mediator, seeks to assist the parties in reaching a mutually acceptable settlement. It is a voluntary and non-binding process that only becomes binding on the parties if and when a settlement is reached” (Lawsociety 2018) one of the main disadvantage of mediation is that it could be a lengthy or time delaying process rather a quick one provided that either of the parties show lack of interest to participate in process, low determination to achieve a resolve, failure in engagement with the other party or with the mediator.

“Conciliation is a voluntary process in which the parties to a dispute agree to avail of a neutral and impartial third party to assist them in resolving their industrial relations differences” (Workplace Relations 2019) workplace relation commission known as WRC in Ireland is known for facilitating the process between intra-business or internal business and industrial disputes also between employees and owners in general. WRC facilitates the process by providing the conciliation officers.

“Conciliation ensures party autonomy, Conciliation ensures the expertise of the decision-maker, Conciliation is time and cost-efficient, Conciliation ensures confidentiality

The parties can choose the timing, language, place, structure and content of the conciliation proceedings” (Dispute-resolution-Hamburg 2013)

The parties are free to select their impartial and independent conciliator having qualities of their own choice of professional background. Disputants have the facility in conciliation to set criteria of preference like; experience, professional expertise, past proven record, availability, language and cultural skills. Additionally, it is cost-efficient, discrete and confidential.

“Arbitration in Ireland is governed by the Arbitration Act 2010” (Lawsociety 2018) . Arbitration is a process is similar in some characteristics to mediation but arbitration is normally picked up by parties to settle their commercial disputes as a litigation alternative. “Arbitration also involves a neutral third party (the arbitrator) who is responsible for running the process and making the decisions necessary to resolve the dispute. Unlike a judge (a public official) the arbitrator is typically a private person chosen by the parties. The person chosen to arbitrate the dispute often has specialized expertise in the subject matter of the dispute; legal training is required only if the parties so specify” (Mnookin, 1998) furthermore, “The parties’ agreement to submit their disputes to arbitration is most commonly found in the form of an arbitration clause incorporated into the contract between the parties. This becomes the basis of the identification of benefits and adverse side of arbitration. Arbitration proceedings are held privately in partnership disputes important company or business-related sensitive data information remains private as compared to being proceedings held in public. As explained by Lawsociety (2018) An arbitrator is a specialist of his field with knowledge, and experience parties have a chance to choose the specialist arbitrator. Less expensive than litigation, control over the procedure.

On the other hand, there is a disadvantage of arbitration as well because after the arbitrator’s award there no or very limited chance of appeal from the any of the parties in courts, it is considered as final and bind. The Lawsociety (2018) in its guide also mentioned an interesting disadvantage about its enforcement that according to the 1958 New York Convention on recognition and enforcement of foreign arbitral awards helps arbitration awards to be enforced in to those 150 countries which are part or subscribed to the convention.s

On further critical analysis, it reveals that there are some disadvantages of alternate dispute resolution the potential disadvantages by (Kwayke 1993, Cited by Cunningham 2015)

Furthermore, a simple example of a worker plumber and a client elaborates the process as if a plumber may have left a joint of water or sewer left open/undone inside the house after he finished his work and that caused flooding in house resulting in damage of personal properties cloths, electronics, books furniture than that is the fault of a plumber instead of filing a lawsuit against plumber in court they can simply sit down and ‘negotiate’ over the issue where client can ask the plumber to pay for the damages or any loss they can mutually agree if it goes smooth than the problem is resolved they can use a solicitor to legalize or formalize the settlement if they want.

In mediation, if in the same above case of plumber and client they couldn’t reach a mutual common ground they can ‘voluntarily’ go for mediation option where an individual neutral third party called mediator help sort things out. A mediator will discuss the issue with both parties separately individual basis (CACUS) or jointly to check any commonalities or points of agreement this help plumber and his client to evaluate options available for them to make a decision. A mediator may also suggest a solution but a mediator cannot decide or give his decision.

In the case of Conciliation both parties agree to attend a conciliation officer and at a certain point of time plumber and his client both ask the conciliation officer to provide them with a non-binding settlement proposal unlike a mediator which may refrain from making such a proposal (Dispute-resolution-Hamburg 2013) (Kwayke 1993, Cited by Cunningham 2015) lists the following additional potential advantages: a less formal and more flexible and convenient arrangement regarding place, date and time can be accommodated; the outcomes are agreed by the opposing parties themselves rather than being influenced by lawyers: – self-determination; suitability of ADR to commercial and technically orientated construction disputes; potential for a creative and amicable outcome in response to an evaluation of the respective cases; focus on mutually beneficial commercial, rather than legal solutions, and focus on continuity of ongoing business relationships without loss of face.

It must be remembered, however that ADR techniques, while generally successful, will occasionally fail and the dispute will then proceed to litigation or arbitration. This failure will probably add to the overall cost and time taken to resolve the dispute. Critics of ADR may argue that “it is soft justice, nothing more than an additional layer of cost in the litigation stream. …’ (LRC, 2010)

The United States of America, for example, is one of the countries where the difference of opinion is promoted or even appreciated in order to give people right to have their voice be heard. same is the case in many other countries around world but we will take USA as an example. In the journal of dispute resolution Shonholtz (2003) in first premise discussed the absence of conflicts in democratic societies due to their constitutional responsibility to peacefully address the issues while encouraging the peoples’ right to have diverse opinions, expression of ideas, forming different political parties according to their ideology additionally the development of public policies that could be against various interests of either societies or businesses.

Conclusion:

Applying the right appropriate alternate dispute resolution technique depends on the specific situation or circumstances of the case, particularly nature, intensity and complexity of the dispute between the parties. (continue)

References

1. Shonholtz, R. (2003). General Theory on Disputes and Conflicts. Journal of Dispute Resolution, (2), pp.1 – 10.
2. Law Reform Commission (2010) Alternative Dispute Resolution: Mediation and Conciliation, Law Reform Commission, Dublin [online] Available at: https://www.lawreform.ie/_fileupload/reports/r98adr.pdf [Accessed 24 Mar. 2019].
3. Cunningham, T. ‘Dispute Resolution under the Principal Irish Forms of Building Contract’ (2015). [online] Available at: https://arrow.dit.ie/cgi/viewcontent.cgi?article=1054&context=beschreoth
4. Burton, J. (1990). Conflict. 1st ed. London: Palgrave Macmillan Limited.
5. Murdoch, J. and Hughes, W. (2000). Construction Contracts law and management. Google Books. [online] Available at: https://books.google.ie/books?id=_9SPAgAAQBAJ&printsec=frontcover&dq=Murdoch,+J+and+Hughes,+W+(2008)+Construction+Contracts:+Law+and+Management,+4th+ed&hl=en&sa=X&ved=0ahUKEwiSvoWmq5PhAhVtURUIHe4-CsQQ6AEIKDAA#v=onepage&q&f=false [Accessed 24 Mar. 2019].
6. Cunningham, T. ‘Dispute Resolution under the Principal Irish Forms of Building Contract’ (2015). [online] Available at: https://arrow.dit.ie/cgi/viewcontent.cgi?article=1054&context=beschreoth
7. Ashworth, A., Hogg, K. and Higgs, C. (2013). Willis’s practice and procedure for the quantity surveyor. Chichester, West Sussex: John Wiley & Sons Inc.
8. Dispute-resolution-hamburg.com. (2013). What is conciliation? – Dispute Resolution Hamburg. [online] Available at: http://www.dispute-resolution-hamburg.com/conciliation/what-is-conciliation/ [Accessed 26 Mar. 2019].
9. Workplacerelations (2019). Conciliation Services – Workplace relations. [online] Available at: https://www.workplacerelations.ie/en/Workplace_Relations_Services/Conciliation_Services/ [Accessed 26 Mar. 2019].
10. Lawsociety (2018). ADR GUIDE. Blackhall Place Dublin [online] Available at: https://www.lawsociety.ie/globalassets/documents/committees/arbitration-and-mediation/adrguide.pdf [Accessed 27 Mar. 2019].
11. Mnookin, R. (1998). Alternative Dispute Resolution. [online] Ssrn.com. [online] Available at: https://www.ssrn.com/abstract=117253 [Accessed 27 Mar. 2019].

Introduction

Professional practices require guidelines that ensure people work in a healthy environment and interact without conflicts. Work policies are not adequate to guarantee employees’ safety and assure them of proportional compensation when they are injured or their property destroyed. There is the need to ensure employees work in unity and assist each other to ensure the goals of their organisations are achieved.

Organisations cannot achieve their objectives if there are unresolved conflicts between workers and management (Henshaw 2012). Therefore, there is the need for the establishment of dispute resolution mechanisms to ensure all conflicts are solved as soon as they occur. In addition, this ensures disputes are solved in appropriate ways without violating the rights of workers or other parties involved. This paper analyses how the dispute resolution mechanism of NZS3910: 2013 Conditions of Service.

Preservation of Relationships

The article explains various ways of ensuring there is a healthy relationship between contractors and engineers. These two parties play important roles in ensuring projects are completed within the specified time and that they are of the desired quality. The article highlights the need for effective communication between the contractors and engineers to ensure the following issues are addressed.

First, there is the need to ensure contractors are in total control of their projects and thus that can predict the outcome of construction processes (Salacuse 2014). Therefore, the article gives the contractor the power to communicate in writing to the engineers and inform him of any proposed changes that will ensure adverse impacts of various situations are minimised or eliminated.

This means that they are in charge of monitoring the progress of their projects and inform engineers about any unexpected situations that may affect the quality of their work. The effect may lead to poor quality work or delayed completion of projects.

In addition, it advocates for meetings between contractors and engineers to ensure they have adequate time to discuss issues that may affect the quality of projects. These meetings may be planned by either of them to ensure they present their views on ways of reducing costs of managing the effects of the external environment that may affect the quality or duration of a project (Henshaw 2012).

These meetings should be held immediately the concerned parties notice that there are issues that must be addressed. It is necessary to explain that projects are very delicate and thus there is the need for contractors and engineers to pay attention to their proceedings. This will ensure all situations are monitored and appropriate changes made as soon as they are noticed.

Moreover, the contract allows the engineer to request his contractor to make changes to a project to ensure the quality of their work is not compromised. Engineers are supposed to make recommendations and specify the time within which corrections are supposed to be done (Otis 2009).

For instance, if an engineer suspects the quality of material or design is inappropriate in a given area, he has the right to request the contractor to make changes within specified period that should not exceed five days unless under extreme conditions. These provisions promote healthy relationships between contractors and engineers and ensure their projects are completed within specified time. In addition, they help in eliminating misunderstanding between these parties and ensure there is adequate dialogue whenever conflicts arise.

Protection of Privacy

The contract highlights the need for the contractor, engineer and other stakeholders to provide the necessary information required to ensure a project succeeds. This means that withholding useful information from other parties is an offence that may attract prosecution and termination of contract (Salacuse 2014). Therefore, all parties are supposed to evaluate the role and importance of their information to the success of their projects.

However, there are some issues that are not bound by this provision. This means that the parties have the right to keep or share some information depending on their assessment of their appropriateness in the success of a project (Sears 2010). First, the contractor or engineer has no right of using the personal information of another party for reasons other than the ones it was requested for. This means that the personal information provided during a contract period is used within a specified time and not after the completion of a project.

In addition, the state will collect personal information from an individual when it is necessary to do so and if the intention is within the scope of a project and its contract. Individuals have a right to have their personal information kept in secret and disclosed after they are consulted and agree on the issue (Adrian 2014). All information stored in state offices should be protected from unauthorised access and disposed according the appropriate procedures.

Flexibility of Proceedings

The clause advocates for timely communication between contractors and engineers about any changes if there are fears that any of the following is bound to happen. First, sometimes the contract price may be altered because of changes in prices of the materials used. The contractor is supposed to notify the engineer in writing and inform him about the changes and how they impact the cost of their construction (Otis 2009).

In addition, all projects usually have scheduled periods within which they must be completed. However, some issues may arise and make contractors unable to complete their projects within the stipulated time. Therefore, they are supposed to communicate with engineers to ensure they understand this situation and make arrangements to accommodate the delays. This ensures disputes between engineers and contractors are minimised.

In addition, all parties involved in a contract have a statutory duty of ensuring they reduce the impacts of unexpected events (Sears 2010). All stakeholders are supposed to request for a meeting to discuss proposals that will avoid or reduce the impacts of unexpected situations. Advance notices are usually given to all stakeholders to ensure the value of any variation arising from the matter is not affected.

Moreover, engineers are supposed to inform contractors if they discover any defects in a project. In addition, a five day period is allowed to remedy the situation. This allows the contractor adequate time to make appropriate changes and inform the engineers if they can manage the situation (Otis 2009). This is a reasonable way of assessing the suitability of a contractor to manage complicated tasks and if he proves to be unsuitable the engineer may hire another person to do the job.

This will not affect the project or performance of the first contractor because he will have understood the situation. These provisions are based on the fact that there are unavoidable circumstances that may cause conflicts between contractors and engineers. Therefore, the project should be flexible to ensure the effects of unexpected events are accommodated without compromising the quality of a contractor’s work.

Conclusion

It is necessary to establish a healthy relationship between a contractor and engineer to ensure projects are completed within their stipulated time and are of high quality.

The privacy of the contractor or engineers’ information is important in safeguarding their rights and ensuring they work in healthy environments. Projects must be designed in ways that accommodate unexpected changes; therefore, they must be flexible to ensure they enable contractors and engineers to make changes that are aimed at improving the quality of constructions.

References

Adrian, J 2014, Construction Productivity: Measurement and Improvement, Stripes Publishers, New York.

Henshaw, J 2012, A Guide to Scaffold Use in the Construction Industry: OSHA 3150 2002, CreateSpace Independent Publishing, New York.

Otis, L 2009, Construction Dispute Resolution: Leading Lawyers on Understanding the Benefits of ADR, Educating the Client, and Navigating the Effects of the Economic Downturn, Thomson West, Minnesota.

Salacuse, J 2014, The Three Laws of International Investment: National, Contractual, and International Frameworks for Foreign Capital, Oxford University Press, Oxford.

Sears, K 2010, Construction Contracting: A Practical Guide to Company Management, Wiley, New York.