Alternative Dispute Resolution 2020/2021 NOTES PDF

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Summary

There are 4 types of Alternative Dispute Resolution, which are negotiation, mediation, conciliation and arbitration. Firstly, the parties involved for negotiation are only those who are related to the dispute, and may or may not include a third party. Meanwhile, the mediation and conciliation have a...

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There are 4 types of Alternative Dispute Resolution, which are negotiation, mediation, conciliation and arbitration. Firstly, the parties involved for negotiation are only those who are related to the dispute, and may or may not include a third party. Meanwhile, the mediation and conciliation have an independent third party that will act as a peacemaker or to reconcile the parties. In arbitration, the third party can be appointed in 2 forms, either compulsory or voluntarily. Secondly, the functions of the third party are different for each ADR. If there is any third party involved in negotiation process, then the person must be an expert in area of disputes and only determines issue or clarify matters. They will give expert opinion. On the other hand, in mediation, the mediator will provide open forum and discuss their dispute. The mediator then will suggest how to solve the dispute during the mediation process. The parties themselves will decide the best solution suggested to resolve their dispute. For conciliation, the conciliator will meet the parties in disputes separately and attempts to resolve their differences, by giving suggestions for solutions. Meanwhile, for arbitration, the parties will refer to their claims to a third party, known as arbitrator. The arbitrator will

make decision for the parties, and normally the arbitrator is an expert in the field of dispute. Thirdly, the effect for each ADR can be seen looking at how they solve things. For negotiation, the settlement may or may not be reached at the end, depending on each party. For mediation and conciliation, the parties can reach a settlement according to proposal of the third party, or they will bring the case to the court. Meanwhile, for arbitration, if the third party is appointed in compulsory form, then the parties must sign an agreement and the decision is binding based on what the arbitrator have decided. If the third party is appointed voluntarily, then the parties will be given an option either to settle the case in the court or seek assistance of an arbitrator in absence of clause in agreement. Next, there are a few applications of the ADR. For instance, negotiation can be used in trade dispute according to section 13 of Industrial Relations Act 1967. Then, in Medication Act 2012 it came into force in August 2012 with the objective to encourage and promote the mediation to facilitate the dispute settlement. For conciliation, it can be found in certain legislations, such as the Law Reform Act 1976 and Islamic Family Law Act 1984 that provide provisions for statutory conciliation which oblige the parties in dispute to get involved in ADR before pursuing their case for litigation. Lastly, for arbitration, there are rules provided under Arbitration Act 2005, and in Section 30(1) of Workmen’s Compensation Act 1952 stated that if the workman’s employer and the commissioner failed to resolve the dispute, arbitrator shall have power to decide such dispute.

Lastly, the procedural of these ADR also has some differences. The procedure for negotiation is informal and flexible, based on the parties. The parties have the authority to determine when they are going to meet. On the other hand, in mediation, the procedure start with the mediator gathering information and identify the problems, and after that will generate options to reach an agreement. Next, for conciliation, the procedure is informal method in resolving disputes. The conciliator dictates his role at the beginning of the session and might invite the parties and department, or municipality representative to give opinions. Lastly, for arbitration, it will begin with the parties requesting for dispute, followed by appointment of arbitrator. Then, the arbitrator will conduct initial hearing and discuss the arbitration agreement with parties. The settlement is final and enforceable by court. The advantages of ADR are that it is more flexible, as the parties can determine when they are going to meet up, unlike going to the court, which the parties have to follow the time given by the court. Next, the settlement is better as the parties have wider choice of ways to settle the dispute, instead of following the court order. This will also help to improve satisfaction among the parties in dispute, as they are able to determine the solution they want. In short, the ADR process is easier and saves more time, rather than going to the court....