Alternative Dispute Resolution Approaches Research Articles

Conflicts and Conflicts Management in a Corporate Organization: The Alternative Dispute Resolution Approach

For the sake of clarity of purpose, the word CONFLICT will be used interchangeably with the word DISPUTE to represent the same meaning as the case may be.

A legal analysis of labour dispute prevention and resolution under individual employment law in Zambia: Willard Mutoka v Chambeshi Water and Sewerage Company Limited (Comp. IRCLK/382/2018)

This case note is a legal review and analysis of Willard Mutoka v Chambeshi Water and Sewerage Company Limited, a Zambian case relating to a labour dispute under the individual employment law sphere. The authors/reviewers herein were retained as counsel for the respondent company in the matter in casu. Appreciating that Zambia has both individual and collective labour dispute prevention and resolution mechanisms, the authors/reviewers in consultation with all parties involved opted to pursue the alternative dispute resolution approach under the High Court for Zambia (Amendment) Rules, 1997 (Court-Annexed Mediation Order XXXI Rule 4), instead of litigation, resulting in the faster, cheaper and final settlement of the case in full satisfaction and accord of both parties as discussed hereinafter. Unlike arbitration awards which are conclusive and final, mediation agreements or settlements need to be registered in the courts for them to be recognised as binding.

Hybrid dispute resolution model for migrant-host communities

PurposeThe purpose of this paper is to locate, describe and analyze the differences between the way migrants from communal cultures and local communities in Western Europe resolve intra-communal and inter-communal conflicts, and to use the findings to propose a hybrid alternative model that may be able to bridge across identified differences. Such a hybrid model will facilitate enhanced integration and adaptation between host and migrant communities, contributing to improved conflict resolution outcomes.Design/methodology/approachThis paper starts with an exploration, review and analysis of existing relevant literature describing refugee/migrant–host community interactions and their consequences. The second stage includes review and analysis of relevant alternative dispute resolution (ADR) literature. The third stage undertakes an examination and analysis of the practices identified in stage two, and the fourth stage proposes a method that uses potentially “bridging” practices by incorporating useful and relevant elements from host and refugee communities’ ADR mechanisms, in a way that may help resolve inter-communal disputes.FindingsThe paper demonstrates significant differences between host and migrant communities’ dispute resolution practices and the integrability of relevant ADR approaches toward creating a usable, hybrid, bridging approach to handle inter-communal conflicts.Research limitations/implicationsThe paper proposes a hybrid “bridging” host–refugee inter-communal conflict management model. The proposed model should be tested to prove feasibility and viability.Practical implicationsShould the proposed model prove useful, the practical implications may lead to the construction and use of different (hybrid) conflict management mechanisms in appropriate communities. Such mechanisms may lead to a reduction in the number and severity of inter-communal conflicts.Social implicationsA reduction in inter-communal conflicts within the framework of a host–migrant interface may have strong positive outcome to inter (and intra) communal relations and may reduce friction, crime, marginalization, hostility and radicalization.Originality/valueThe paper highlights the challenges to both migrant and host communities when it comes to finding a common ground for resolving inter-communal disputes and offers a pragmatic hybrid model to bridge cultural and functional gaps and help promote mutually satisfactory outcomes.

Premises recovery through adoption of alternative dispute resolution (ADR) techniques

Purpose This paper aims to explore the use of alternative dispute resolution (ADR) techniques as a legitimate means of ejection of recalcitrant tenant in property. This is with a view of providing information that will improve property investment and management. Design/methodology/approach The paper adopts a case study approach using five selected case studies where ADR approach was used to recover premises. Findings The experience from the case studies shows that the use of ADR in premises recovery is effective but has its challenges. In the five case studies, consent judgment, mediation and negotiation were used to recover premises in less than three months compared to an average of 18 months using litigation. Also, the cost in all the cases were lower where they exist at all than when litigation are used. The paper provides useful information to practitioners on the use of the effective alternative approach to recover premises from recalcitrant tenants. Originality/value The paper provides practical ways through which recovery of premises could be achieved through non-adversarial technique in developing property markets, which hitherto was not available in literature.

Review of Best Practice in Construction Disputes: Avoidance, Management and Resolution by Dr. Paula Gerber and Brennan J. OngLexisNexis Butterworths, New South Wales, Australia; 2013; ISBN 978-0-409-33307-7; 493 pp.; $110.

Review of <i>Best Practice in Construction Disputes: Avoidance, Management and Resolution</i> by Dr. Paula Gerber and Brennan J. OngLexisNexis Butterworths, New South Wales, Australia; 2013; ISBN 978-0-409-33307-7; 493 pp.; $110.

Problems, preferences and processes related to dispute resolution in construction in South Africa

The aim was to identify and compare various dispute resolution methods and communication problems, the preferences of professionals and suggested processes. Literature of alternative dispute resolution (ADR) methods was reviewed and two studies were conducted to understand the problems, preferences and processes related to dispute resolutions. One was a case study where disruptions lead to misunderstandings and to arbitration procedures. The other study was done through a questionnaire handed to quantity surveyors. Communication to deal with differences and claims forms part of their work routine. Results identified an ADR approach to select methods to isolate the preferred and effective resolution method. Communication problems and elements for dispute resolution strategies were identified and were used to propose a model. The results of this study may assist the construction industry to select the most appropriate process. The model may further assist parties to solve differences amicably.

A Trip Around the Cartel Victims Remedy Buffet

The debate about whether the European Union should adopt a community-wide system to compensate victims of illegal cartel activity has generated a lot of heat, but perhaps less enlightenment, over the past years. Some people are arguing for grafting a U.S. style class action litigation system onto the EU structure, somehow modifying that U.S. graft to avoid the costs of the U.S. system while all the while preserving and reflecting European cultures and traditions. This article discusses three potential approaches: inaction (letting the law develop as it is doing right now; adopting a U.S. style litigation system; and trying an Alternative Dispute Resolution approach. It concludes with the idea of a government controlled restitution system, to get the best results with the least amount of collateral damage to the legal structure.

The Management of the Spratly Islands Conflict: Success or Failure?

The Spratly Islands conflict in the South China Sea originally started in the 1930s, but was first manifestly erupted in 1969. They are entirety and partially claimed by China, Taiwan and Vietnam, and Malaysia, the Philippines and Brunei respectively. Spratly Islands is the source of conflict because of its oil abundance and other natural resources, and strategic location. Though some regional efforts have been implemented to resolve the conflict such as the preventive diplomacy and track two diplomacy employed by Indonesia, the track one diplomacy of ASEAN Regional Forum and so on, the conflict is still going on as all the claimants, particularly China, are realist in resolving the conflict. Since each claimant continues to do so, the interest/rights/power model or dispute resolution stairway is suggested. However, in order to rightly apply this model into Spratlys conflict, only two steps of stairway, interest-based and rights-based solutions, are taken into account. To put it in other word, two appropriate solutions, the interest-based solution or institutional approach - join development project - by employing constructivist theory, and achieving through negotiation among the parties themselves, and the rights-based solution or alternative dispute resolution approach - arbitration - conducted by the International Court of Justice (ICJ) through UNCLOS, are proposed for the Spratlys conflict. Concerning the joint development project, it perhaps necessary to first negotiates a formal treaty that freezes the existing claims of all the disputants. The proposed treaty should also contain a clause that will enable Taiwan to unilaterally affirm that it supports and will abide by it. If all the claimants strictly adhere to the principles of the 2002-declaration and the to-be-created treaty, and the aforementioned are viable, further clashes can be prevented, and a way out for this protracted dispute can be merely achieved. Regarding the arbitration of the ICJ, the verdict of the ICJ is a zero-sum outcome. This solution might be viable if all the claimants could mutually agree with the verdict of the ICJ.

ADR Approach to Juvenile Justice

Since 70s ADR-Alternative Dispute Resolution (in the form of mediation, conciliation and arbitration) started gaining popularity. In the recent years we have started using this mechanism in number of dispute contexts. Thus, Alternative Dispute Resolution (ADR) has come to stay and now it is an accepted form of dispute resolution. Though in the beginning it faced some skepticism, no way it is a competition to the established judicial system. It is only an additional process, which shares the burden of judiciary - so that the latter can give its precious time to more complex issues. This mechanism has been extensively used in civil matters till recently. It is now being used in the administration of criminal justice also which is further extended to the sphere of Juvenile Justice.

Current Illusions and Delusions about Conflict Management—In Africa and Elsewhere

This paper provides a critical perspective on the use of U. S. alternative dispute resolution (ADR) approaches for managing conflict in African and other communities. It argues that imposition of American ADR as a condition for foreign aid or capital investment is deeply problematic, and urges a more sophisticated analysis of the power dimensions and ideological basis of ADR. When viewed as an ideologically laden paradigm for how conflict should be resolved (i. e., a conflict paradigm), ADR can be seen as carrying troubling baggage. For example, ADR approaches imported from the United States deal with dispute resolution simply in terms of mechanisms or techniques, ignoring substantive issues central to conflict management in African and other communities. The entire discourse surrounding ADR pays insuficient attention to problems with terms such as modern or traditional, and encourages an ingenuous denial of the effects of inequality in power and money on conflict resolution. This ideological baggage renders unreflective imposition of ADR incompatible with the best interests of African communities. The authors urge a more complete and objective analysis of the global ADR revolution-one that takes a broader perspective.

Preserving Workers' Compensation Benefits in a Managed Health Care Environment

Managed care techniques are increasingly being applied in the workers' compensation setting. Many workers, labor representatives and public health advocates fear that the introduction of managed care into workers' compensation may reflect a broader employer-driven campaign to erode benefits, tighten eligibility criteria, and weaken employees' control over health care and compensation issues. The potential threats to workers can be mitigated by involving them in the design of the workers' compensation health plan and selection of provider organization, assuring access to appropriate specialists and diagnostic testing, minimizing delays, increasing accountability through contract provisions and government oversight, and enhancing communications through the use of ombudsmen and alternative dispute resolution approaches. Additional outcomes studies assessing the long-term impact of managed care in workers' compensation are needed.

Alternatives to High-Cost Litigation

Companies that formalize an internal problem-resolution program may avoid huge legal costs and boost employee morale. Alternative Dispute Resolution (ADR) avoids time-consuming and expensive court trials. ADR may include mediation, arbitration, mini-trials, summary trials, and peer review. Whatever ADR format is used, it gives both sides of a dispute the chance to resolve their conflict-and in so doing saves time and money and relieves the stress associated with litigation. Some courts now require settlement conferences to encourage resolution of disputes outside the courtroom. ADR can be part of a company's formal internal grievance procedure or a company can propose an ADR approach on case-by-case basis. Mediators or arbitrators tend to be less emotional and perhaps more objective than jury members, whose emotions tend to cause high-cost verdicts. ADR can result in a prompt resolution (compared with courtroom backlogs, which can mean years of delay), and ADR can result in sizable reductions in legal fees and other costs.

ADR and Administrative Responsiveness: Challenges for Public Administrators

In recent years, alternative dispute resolution (ADR)(1) has received a great deal of attention at the federal level. The Administrative Conference of the United States (ACUS), whose mission is to promote improvements in the efficiency, fairness, and adequacy of federal agency operating procedures, held conferences, conducted research, and published recommendations promoting the use of ADR by federal agencies throughout the 1980s. This interest in ADR stems from the observation that dispute resolution techniques can eliminate delays, reduce demands on government, and produce more cost-effective and more satisfying results than traditional administrative procedures or litigation (Susskind, Babbitt, and Segal, 1993; Dukes, 1993). A diverse set of agencies and departments--some in response to ACUS' urging and some on their own initiative--have used ADR approaches such as negotiation, mediation, fact finding, and minitrials to resolve a wide variety of controversial public issues.(2) Congress responded to this growing interest in ADR by passing the Negotiated Rulemaking Act (public Law 101-648) and the Administrative Dispute Resolution Act (Public Law 101-552) in 1990. The Negotiated Rulemaking Act establishes a structure for using consensus-based negotiations to develop federal regulations. The Administrative Dispute Resolution Act (known as the federal ADR act) is more comprehensive in scope. It directs each agency to: designate an in-house dispute resolution specialist; provide ADR training for agency personnel; review all programs for ADR opportunities; adopt dispute resolution policies; and examine grant and contract language to identify means of promoting ADR over litigation (Madigan, 1992; Susskind, Babbitt, and Segal, 1993). The successful implementation of the Administrative Dispute Resolution Act faces a number of challenges. The act provides no budgetary support for ADR, and existing budgeting procedures often encourage the use of litigation (Susskind, Babbitt, and Segal, 1993). Although ACUS has provided guidance, agency officials will have to learn a number of new skills including identifying disputes that are potential candidates for ADR, selecting the appropriate ADR process for specific situations, and choosing third-party neutrals who can work with the disputants. Although ACUS recommendations and the Administrative Dispute Resolution Act address the important issues of confidentiality, representativeness, and accountability, federal officials will have to grapple with the reality of these challenging aspects of ADR (Amy, 1990; Hamilton, 1991; Susskind, 1981). Successfully implementing the Administrative Dispute Resolution Act also will involve confronting deeper issues associated with the traditional practice and context of public administration and the culture of professionalism. Stephenson and Pops (1991) have questioned whether administrators have the capacity--in terms of education, training, and role--to participate effectively in ADR. In recent years, numerous federal agencies have provided ADR training in specialized workshops or as part of more broadly focused leadership development programs. However, more challenging than providing training and technical assistance will be overcoming the barriers of professionalism: the resistance generated by traditional norms and role expectations. Professionally trained government officials may find it difficult to reconcile' ADR--often perceived as political bargaining--with their existing norms and procedures for technical or scientific decision making. Negotiating with members of the public may be viewed as being unprofessional (Freemuth, 1989; Manring, 1993; Stephenson and Pops, 1991). Public officials also may fear that ADR will mean a loss of decision-making authority (Bingham, 1986; Meeks, 1985; Susskind and Cruikshank, 1987). In this article, I examine one such issue that inevitably accompanies the use of ADR but receives little direct attention: the relationship between ADR and administrative responsiveness. …