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QLLM385-Week 9 – Approaches to mediation Readings ,QLLM385-Week 7 - A continuum of alternative processes – Readings and QLLM385-Week 5 – strategies of negotiation – Readings
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Week 7 - A continuum of alternative processes – ReadingsSimon Roberts & Michael Palmer, Dispute Processes: ADR and the Primary Forms of
Dispute Resolution pp 264-275
Arbitration – General
The umpire here is privately chosen and makes a decision within a procedural environment of
the parties’ choosing. Arbitration has been institutionalised within a number of locations e.g.
in the commercial sphere where notions of privacy and procedural informality have become
less significant.
Pure form – arbitration is private and voluntary and is dependent on the parties’ agreement to
be bound by the decision of the panel. But now, arbitration is sometimes compulsory and
non-consensual used by courts in a number of jurisdictions to either assist types of cases or
manage caseloads. Private arbitration still includes evidence and arguments submitted to a
neutral third party like a court. This third party has the authority to issue a binding decision.
The difference between the court process and arbitration is that in arbitration the parties
attempt to resolve their disputes by less formal procedure. Parties have also both chosen to
arbitrate and selected the arbitrator themselves. Arbitration can be called a ‘private form of
adjudication’ with the third party intervening to control exchanges between the parties and to
impose a decision.
In purer arbitration, parties either agree in advance that specified types of disputes will be
arbitrated or they enter into ad hoc arbitration when a dispute arises. Parties agree that the
arbitrator’s decision will be binding on them. The arbitration is carried out as a private
process, parties often design the process to be employed and provide substantive standards to
be used by the arbitrator. Arbitrator’s do not consider themselves bound by any doctrine of
precedent, she is free to decide the outcome on the merits of each party’s position in the
instant case. Parties are able to select the umpire, they typically choose an arbitrator with
expert knowledge of the facts of the dispute because she has experience of the same business.
The need to educate in court adjudication is a hurdle that may be insurmountable and will
cost time and money to deal with.
Arbitration origins lie in the preference of 18th century English merchants to resolve their
disputes in accordance with trade customs rather than laws of the state relying on their own
kind rather than a state decision-maker.
L Fuller – an arbitrator is meant to do justice according to the rules imposed by the parties’
contract. He decides the dispute on the basis of arguments and evidence presented to him. He
doesn’t mediate or conciliate and foregoes private communication with the parties. Critics
argue that arbitration enables a man who pretends to be a judge to enjoy the powers of his
office without accepting its restraints which is an abuse of power.
Benefits of private arbitration – privacy of proceedings, procedural informality, expertise of
the decision-maker, finality of the decision, low cost, and speed. However, in reality, costs
can escalate quickly are some arbitrators charge highly for their work. Arbitrator’s with high
reputation may have a queue of people meaning that they have a heavy case load.
, Institutionalisation has taken place in arbitration and new procedural norms have developed
to deal with perceived problems. This means that hearings have become more legalist and
inflexible. So, arbitration has therefore become counter-productive in terms of time, costs and
formality. As a result of pressures of institutionalisation and imperfect control of practice,
there may be an inherent tendency for arbitration to lapse into a second-rate version of court
adjudication.
Arbitration – court linked
This is development into compulsory arbitration where parties may be required to use a
system annexed to state/federal trial courts. The decisions made by arbitrators in court-
annexed systems are not binding. One of the main goals of court-annexed arbitration is to use
non-binding arbitration to promote early settlement.
Arbitration – international
International businesses have been attracted to solving disputes through private arbitration.
This has been stimulated in party by globalisation.
Y Dezalay and B Garth – international commercial arbitration has become more universal.
International commercial arbitration permitted conflicts to be handled at a distance from cold-
war politics and state interventionism. The ICC represented an alliance between European
grand professors and their disciples from other countries. It was organised around academic
institutions that reflect academic neutrality. It employed a private institutional platform that
has no formal ties with states. The ICC could therefore argue that international commercial
arbitration was neutral. However, there is an argument that international does not mean a
necessary decline of the role of states. The geopolitical centre of gravity of the international
field depends on the result of power struggles between different national groups who fight
themselves on the terrain of the international. The international legal field may be limited to
an alliance with the dominant groups in power or may provide places for other political
forces and other social groups.
Simon Roberts & Michael Palmer, Dispute Processes: ADR and the Primary Forms of
Dispute Resolution pp 277-357
Chapter 8 - Hybrid forms and processual experimentation
A. Introduction
The former processual anarchy is under challenge due to the growing desire to have a
negotiated solution first. Courts are also seen as having primary responsibility to sponsor
settlement. The emergence of new hybrid forms of ADR have been given official blessing in
some cases.
There have been a number of ways in which mediation have developed to include a link to
arbitration (med-arb), annexing mediation to courts etc. There are also court based initiatives
that sponsor settlement e.g. early neutral evaluation.
Gulliver – the Ifugao people of the Philippines sought to settle matters strictly between
themselves as opposed to using courts or neighbourhood tribunals where arguments and
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