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Conflict Managment

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Conflict Management ­HRM624
VU
Lesson 38
ARBITRATION II
Quotation
"Excellence is to do a common thing in an uncommon way". Booker, T.
(Moving from complicated court procedures to simplified and more human procedures to resolve disputes
among individuals.)
We will learn the following points in this lecture
1. How the arbitration process works.
2. The situations in which courts intervene to enforce, modify, or eliminate the process or outcome of
arbitration.
3. The many ways in which the law supports a deferential attitude toward the arbitration process.
4. The reviewability of arbitration awards.
5. The problems of choice of law in interstate, international, and multinational arbitration.
Arbitration
Mediation, arbitration, and litigation are the main forms of ADR.
Local Govt. Ordinance 2001, have many sections relating to ADR (Alternative Dispute Resolution).
Arbitration is a legal process whereby a neutral third party (arbitrator) hears the dispute and issues an award.
Arbitration awards are final and binding on the parties and can only be challenged in very exceptional
circumstances. An arbitration award has a status similar to a judgment and arbitration.
Arbitration award:
The binding decision issued by an arbitrator is called arbitration award.
Executory agreements to arbitrate:
Agreements to submit future disputes, not currently in existence, to arbitration are called executory
agreements to arbitrate.
De novo: Latin, meaning, "a new." In the law, a retrial of a previously decided dispute, in which all of the
legal and factual issues may be relitigated and redecided. A trial de novo is in contrast to an appeal, in which
only errors of law can be the basis for a change in outcome.
Varieties of mediation
Formality and
Informal arbitration: arbitration characterized by
rigidity of the
minimal participation by lawyers, minimal
process
discovery, procedural rules, or rules of
evidence. Arbitrator may act in a facilitative
manner.
When a contract to
Executory arbitration: agreement to arbitrate
arbitrate is formed
predates dispute.
Types of labor
Interest arbitration: arbitration to determine
arbitration
terms of collective bargaining agreement
Private or public
Private arbitration: arbitration not under
sector
auspices of public sector.
Varieties that restrict High-low arbitration: arbitrator's decision is
the nature of the
restricted to a range of possible outcomes by
arbitrators award
prior agreement of the disputants.
Bindingness of the
Binding arbitration: arbitration in which the
outcome
outcome is binding on all disputants ("true"
arbitration).
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Conflict Management ­HRM624
VU
Varieties of Arbitration
Beyond the dichotomy between traditional and legalistic arbitration, there are other variants commonly seen
in today's arbitration practice.
Executory and Ad-Hoc arbitration:
Executory arbitration is arbitration provided according to an executory agreement.
Ad-hoc arbitration is arbitration agreed to after the fact of a dispute.
Administered and non-administered arbitration:
Another way to distinguish forms of arbitration is to consider whether the arbitration is administered or non-
administered.
Interest and Rights Arbitration:
Labor arbitration is divided into interest arbitration and rights arbitration according to the sorts of issues being
arbitrated.
Other arbitration varieties: One can distinguish between private arbitration and court-based arbitration.
Litigation
Arbitration
Mediation
Formal process
Less formal process
Least formal process
Formal rules of evidence
Rules of evidence
Rules of evidence do not
relaxed
apply
Formal discovery
Limited discovery
Informal fact-finding
Public record
Hearings are private
Private and confidential
Judge/Jury makes
Arbiter makes decision
Parties make decision
decision
Verdicts final, subject to
Decisions can be binding Parties decide whether
appeal
with limited appeal
to settle; agreements
rights
are enforceable
contracts
Expensive and time-
Often quicker and
Quicker, cheaper and
consuming
cheaper than
less stressful than
litigation
litigation
Process of Arbitration
Arbitration consists of eight basic steps:
1. Creating the arbitration contract
2. Demanding, choosing, or opting for arbitration
3. Selecting the arbitrator or penal of arbitrators
4. Selecting a set of procedural rules
5. Preparing for arbitration
6. Participating in the arbitration hearing
7. Issuing the arbitration award
8. Enforcing the award
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Conflict Management ­HRM624
VU
Creating the Arbitration Contract
Arbitration always begins with a contract to arbitrate, the arbitration contract may be executory (developed
prior to the development of a dispute) or ad-hoc (develop to resolve an existing dispute).
As with any other contract, arbitration contract should be designed to minimize the chances of dispute
escalation, should anticipate future developments, and should be appropriately fair and equitable.
Additional points for arbitration contract are given below:
Contents of Arbitration Act
1. The matters to be arbitrated should be set out explicitly.
2. The expenses of arbitration (arbitrators' fee, cost of transcripts, and cost of hearing room) should
be shared equitably among disputants.
3. Arbitrators' selection and qualification should be considered carefully.
4. The agreement should specify whether discovery is to be permitted.
5. The hearing of hearings and their duration may be explicitly scheduled.
6. Privacy and confidentiality should be addressed.
7. The roles of arbitrators should be clarified duly.
8. Rules of evidence may be specified with mutual agreement.
9.  The disputants should agree about the provision of specified documents with a schedule for
submission.
10. The contract should specify the nature of arbitrators award (just outcome or with explanatory
opinions).
11. Reviewability and enforcement of the award may be specified (law must be in purview).
12. Choice of law may be spelled out in the agreement, especially if the arbitration is between different
states.
13. Provisional remedies or temporary injunctions may be needed in an arbitration contract.
14. Disputants may like to include a class providing mediation as a first resort in any executory
agreement to arbitrate.
Law of Arbitration
Arbitration would be an extremely simple process if everyone involved in every arbitration proceeding
accepted it with enthusiasm. However, arbitration, being an adjudicatory process, frequently leads to at least
one dissatisfied customer. And when a disputant is dragged, kicking and screaming into an arbitration he
consider loathsome, the disputant is likely to search for ways to avoid the process or its outcome.
Before Arbitration
When should a dispute be arbitrated?
Enforceability and arbitrability.
Enforceability: Whether the contract to arbitrate is valid and can be enforced against the party seeking to
avoid arbitration.
Arbitrability: Whether a particular dispute is subject to an agreement to arbitrate.
After Arbitration
1. Enforcement of arbitration awards.
2. Review of arbitration awards.
3. Choice of law during arbitration.
4. Choice of law in matters of enforceability, arbitrability and reviewability.
Summary
Arbitration contract is extremely important. It should be explicit and comprehensive as it will guide the
process of arbitration. It also assures enforceability and implementation. It improves the acceptance of the
award by all the disputants. In short a good arbitration contract is a guarantee for the successful
implementation of the award.
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Table of Contents:
  1. INTRODUCTION TO CONFLICT:Dispute, Legal Dispute, Call the police
  2. DISPUTE RESOLUTION 1:Positive affect in Negotiation, Alternative Dispute Resolution
  3. DISPUTE RESOLUTION II:Adjudication, Litigation, Mediation-Arbitration
  4. PRECONCEPTIONS ABOUT CONFLICT I:Pedagogical development, Pressures against Innovation
  5. PRECONCEPTIONS ABOUT CONFLICT II:Cultural beliefs about interpersonal conflict, Why strategies of change fail
  6. CONFLICT DIAGNOSIS:Who Needs to Know About Conflict Diagnosis?, Steps in Conflict Diagnosis
  7. RECURRENT THEMES IN CONFLICT DIAGNOSIS I:The Seven Steps of Social Behavior, Seven steps to diagnose conflict
  8. RECURRENT THEMES IN CONFLICT DIAGNOSIS II:Themes of Conflict Diagnosis
  9. DESCRIBING THE CONFLICT I:Description of Conflict, Identifying Interpersonal Conflict
  10. DESCRIBING THE CONFLICT II:Step 1 for Conflict Diagnosis, interpersonal or intrapersonal
  11. SOURCES AND CAUSES OF CONFLICT I:Main Sources of Conflict, Discussing major sources of conflict
  12. SOURCES AND CAUSES OF CONFLICT II
  13. INTEREST ANALYSIS I:Analyzing your interests, Analyzing the other disputant’s interests
  14. INTEREST ANALYSIS II:What are interests?, Tips for Interest Trees
  15. INTEREST ANALYSIS II:Principles and values, Basic Human Needs
  16. ASSESSING THE CHARACTER OF THE CONFLICT I, Premises of Deutsch’s Theory
  17. ASSESSING THE CHARACTER OF THE CONFLICT II:Techniques to transform competitive conflict into cooperative
  18. TRUST AND ITS SIGNIFICANCE I:What is Mistrust,Trust and business,Three levels of trust
  19. TRUST AND ITS SIGNIFICANCE II:Advantages of high trust level, Building of trust
  20. ASSESSING IMPEDIMENTS TO RESOLVE THE CONFLICT I:Motivation to seek vengeance, Mistrust
  21. ASSESSING THE IMPEDIMENTS TO RESOLVING THE CONFLICT II:Disempowered Disputant, Unpleasant Disputant
  22. ASSESSING THE NEGOTIATING STYLE I:Dual Concern Model, Dominating or competition style
  23. ASSESSING THE NEGOTIATING STYLE:Dual Concern Model, Tactics Used In Integrating
  24. ASSESSING POWER AMONG DISPUTANTS:Conflict and Power, Kinds of power in the Relationship Domain
  25. ASSESSING POWER AMONG DISPUTANTS II:Sources of Relationship Power, Context and Power
  26. POWER, CONFLICT, AND BATNA III:Role of Third Party in BATNA, Dealing with Power Imbalance
  27. STEREOTYPES, DIVERSITY, AND CONFLICT I:Stereotyping, Stereotyping in Interpersonal Conflict
  28. STEREOTYPES, DIVERSITY, AND CONFLICT:Categories of Diversity Issues, Seven Mental Processes to Prove Stereotypes
  29. STEREOTYPES, DIVERSITY AND CONFLICT III:Individual Difference and Social Category, Cultural differences in values
  30. MEDIATION I:When is mediation required, Processes Related to Mediation, Product of Mediation
  31. MEDIATION II:Important distinguishing factors, More Advantages and Disadvantages of Pure Mediation
  32. ADVANTAGES AND DISADVANTAGES OF MEDIATION I:Efficiency Consideration, Conflict Management and Prevention
  33. ADVANTAGES AND DISADVANTAGES OF MEDIATION II:Quality of Consent, Effects on the parties to mediation
  34. PROCESS OF MEDIATION:Stages of Mediation, Facilitative tactics in mediation
  35. LAW AND ETHICS OF MEDIATION I:Characteristics of mediation, Confidentiality
  36. LAW AND ETHICS OF MEDIATION II:Role of ethics in mediation, 8 Dimensions of Ethics in Mediation
  37. ARBITRATION I:Ways to Resolve Conflict, Advantages of Arbitration, Disadvantages of Arbitration
  38. ARBITRATION II:Varieties of Arbitration, Process of Arbitration, Contents of Arbitration Act
  39. NON BINDING EVALUATION:Disadvantage, Varieties of Non-binding Evaluation
  40. NON BINDING EVALUATION II:Varieties of Non-binding Evaluation, Advantages and disadvantages of Non-binding Evaluation
  41. MIXED AND MULTIMODAL DISPUTE RESOLUTION:Six System Design Principles, Extensions of Dispute Systems Design
  42. POWER TOOLS AND MAGIC KEYS I:Introduction, Necessity of conflict diagnosis, Using conflict diagnosis
  43. POWER TOOLS AND MAGIC KEYS II:Proposed Contents of a Clients’ Interview, Impediments to use facilitative mediation
  44. PANCHAYAT, LOCAL GOVERNMENT SYSTEM, AND ADR, Definitions of Panchayat, Definition of Jirga
  45. SUMMARY AND MESSAGE OF THE COURSE:Definitions of conflict, Negotiation, Meditation, Adjudication