Alternative Dispute Resolution Mechanisms Research Articles

Civil Procedure Takes a Bold Step: Unravelling the changes to service out of the jurisdiction and the Civil Procedure Rules in the British Virgin Islands

Abstract Following years of consultation, the ECSC Civil Procedure Rules 2000 gave way to the revamped and refreshed ECSC Civil Procedure Rules, Revised Edition 2023 (Civil Procedure Rules, Revised 2023), which came into effect on 31 July 2023. The Civil Procedure Rules, Revised 2023, brought sweeping and significant changes to civil practice and procedure, particularly in the areas of service out of the jurisdiction, relief from sanctions, and costs. The Civil Procedure Rules, Revised 2023, gave birth to a novel alternative dispute resolution mechanism, the Judicial Settlement Conference, intended to complement the well-established out-of-court arrangement of court-ordered mediations.

THE CHALLENGES OF INVESTMENT ARBITRATION: SUCCESS OR FAILURE? A COMPARATIVE ANALYSIS OF INVESTMENT ARBITRATION IN NORTH MACEDONIA AND KOSOVO

Background: In today's modern business and technological landscape, businesses are increasingly inclined to seek alternative methods for resolving disputes rather than rely solely on traditional court procedures. Businesses are also increasingly aware of the significance of resolving conflicts through alternative means and taking proactive measures to avoid litigation. In recent decades, investment arbitration has gained widespread acceptance and has emerged as a preferred mechanism for resolving disputes involving international investors in Western Balkan countries. Some countries demonstrate a favourable inclination towards employing arbitration as a dispute resolution mechanism by enacting legislation that grants investors the right to initiate arbitration proceedings against the state in case of failure. This scientific research objective will be achieved through the reflection of the legislative framework in the matter of investment arbitration as well as the reflection of the flow of foreign investments, analysing and not limited to the treatment of concrete cases of arbitration disputes. Through this approach, we will answer the central question of how much arbitration as an alternative dispute resolution mechanism is a stimulating factor for attracting foreign direct investment or whether multinational companies only use the legislative and incentive favours offered by the Republic of Kosovo and North Macedonia. Methods: The article was conceived based on a modern methodological framework. Within the general methodological framework of scientific research, logical methods play a crucial role in the scientific processing of the research data, drawing conclusions and determining facts through which the truth of the thesis of the work is reached scientifically. In the context of this paper, the method of analysis through which the impact of arbitration as an alternative dispute resolution mechanism in relation to the flow of investments will be analysed is noteworthy. Additionally, methods of abstraction and concretisation will also be used. Abstraction is the basis of analysis, which sometimes represents the separation of parts from the whole subject. Moreover, the comparative method will highlight the diverse normative solutions in national legislation and international legal sources. Results and conclusions: In the article, the authors propose considering the effectiveness of existing provisions and determining whether adjustments or alternative approaches are needed to maximise the benefits of foreign investment while minimising potential risks and uncertainties associated with dispute resolution processes.

Academic citizenship as a mediating mechanism

Various skills necessary to conduct mediation—a popular alternative dispute resolution mechanism—from effective trust-building to active-listening can be extrapolated and applied to defining and manifesting good academic citizenship. This essay suggests that learning how to communicate better, by understanding the interest of others while advocating for our own, is an essential—and often lacking—skill for many academics. Not only is communication a sign of respect that we are willing to engage with one another, but perhaps more relevant to the issue of academic citizenship, effective communication entails empathy and kindness, which fosters the willingness for the other side to reciprocate. This feeling of mutual respect and reciprocity are key ingredients to engendering safety and a sense of belonging, which often produce successful outcomes in mediation. This essay, relying on personal narratives, submits that these elements are currently lacking across many pockets of academia, where various instances of failure to communicate have created a sense of distrust and unnecessary acrimony. Learning how to mediate could offer academics a path out of this conundrum, which could also contribute to strengthening our collective sense of academic citizenship.

Community radio and post-conflict peace building: A study of Orisun 89.5 FM in Ife–Modakeke, Osun State, Nigeria

In times of conflict or tragedy, radio is essential, especially in underdeveloped nations where the collapse of other communication infrastructure may make radio the sole dependable source of information. This study assessed the extent to which community radio has contributed to the peacebuilding efforts after the Ife–Modakeke conflict in Nigeria, by investigating to ascertain listeners’ perceptions and adoption of the alternative dispute resolution (ADR) mechanism in managing the conflict to avoid a violent escalation. The study applied in-depth interviews and collected data with questionnaires. The findings of the study suggested that the inhabitants of Ife and Modakeke listened intensely to and were aware of the conflict resolution programme on one of the popular radio stations, Orisun 89.5 FM. People also used and knew others, who used the radio programme ‘ADR mechanism’ on the radio to resolve the conflict and avoid violent escalation. Since it was the only peacebuilding programme, the study found that this radio programme was an effective peacebuilding tool in the Ife–Modakeke society. The study recommended that such a good effort should be broadcast more often for further heightened awareness of its diverse listeners.

The Role of ADR in Resolving Disputes Related to Medical Negligence

In today’s fast-paced world, a rapid rise in instances of Medical Negligence has been observed since the last decade. Cases of Medical Negligence happen when healthcare practitioners like doctors, and nurses, or when any hospital deviates from its standard duty of care, the consequence of which results in harm and injury to a patient. Due to the failure of medical professionals to exercise due care, individuals and their families may pursue recompense for the injuries suffered as a result of the misconduct and negligence exhibited by doctors, nurses, or other healthcare practitioners. The disputes related to medical negligence are generally settled by the traditional justice system i.e., Litigation which involves appearing before the Hon’ble Court and having a Judge decide on a particular dispute in question. In light of the protracted and costly nature of our nation’s legal system, which often yields results that may not meet the parties’ desired outcomes, alternative dispute resolution (ADR) mechanisms, including arbitration and mediation, have emerged as prominent approaches for resolving medical malpractice disputes involving healthcare practitioners. These ADR procedures are currently considered as feasible alternatives to the extended and expensive litigation procedure. ADR mechanism enables disputing parties to let them resolve their disagreements outside the court in a more cooperative as well as efficient manner. A mediator is a neutral third party that encourages conversation between opposing parties and eventually assists them in reaching an equitable settlement agreed upon by both disputing parties. In contrast, a neutral third person, known as an arbitrator, participates in the arbitration court and listens to the evidence of the parties engaged in the dispute before making a binding judgment on the case’s conclusion.

What Is The Process Of Resolving Disputes In International Business Law?

The complex global business landscape often creates conflict between entities, highlighting the need for efficient dispute-resolution mechanisms. Increased competition between countries can result in disputes that require immediate attention and require careful consideration of the structure of international and national communities. The importance of dispute resolution mechanisms is visible in the complexity of international business activities. This research aims to deepen a more essential understanding of alternative dispute resolution mechanisms in international business law. This objective is achieved by stating two research questions: the scope of resolving trade disputes and the alternative resolutions for international trade disputes. This is comparative qualitative research carried out in the literature concerning a normative juridical approach. Data was collected by searching relevant literature and legal materials for normative qualitative analysis. This research found that two types of disputes are commonly encountered in the legal process: disputes that are legal or can be resolved and conflicts that are political or cannot be resolved. Alternative Dispute Resolution (ADR) stands out for its effectiveness and efficiency in dispute resolution law. ADR aligns with the evolving dynamics of global trade, providing a valuable tool for managing disputes between business entities. Alternative. At least three alternative dispute resolution options can be chosen: (i) Resolving international trade disputes through mediation; (ii) Resolving international trade disputes through the World Trade Organization (WTO); Resolving disputes in international business through arbitration. This research suggests that it would be best to consider alternatives for resolving trade disputes according to the case's complexity level.

Legal Consequences for Companies that Carry Out Unilateral Termination of Employment

The COVID-19 pandemic has resulted in the Company taking steps to streamline company costs by laying off workers. Many companies experience labor relations disputes, one of which is that the company carries out unilateral termination of employment (PHK) of workers without negotiating with the workers and does not pay attention to the rights of these workers. This research aims to find out and examine the mechanism for resolving industrial relations disputes in Badung Regency as well as knowing and studying the legal consequences for companies that carry out unilateral layoffs of workers with a fixed term work agreement (PKWT) and workers with a fixed term work agreement (PKWTT) in Badung Regency. This research is empirical legal research with a factual approach and a statutory approach. The research results confirm that there are 2 (two) alternative dispute resolution mechanisms for industrial disputes, either through non-litigation channels, namely by bipartite negotiations, mediation, conciliation, arbitration or by litigation, namely through the industrial relations court (PHI). Layoffs can be said to be valid if they have received a decision from the PHI and if without this decision the employer continues to lay off workers in PKWT and PKWTT who received layoffs unilaterally, then the layoffs are not legally valid and are considered null and void. The legal sanction for employers who lay off PKWT workers before their term of employment ends is to fulfill the workers' rights, namely by providing severance pay, gratuity money, compensation money due to the layoff.

Legal Protection for Consumers in E-commerce Expeditions

This study investigates the legal protection afforded to consumers in the context of e-commerce, focusing on the liabilities of expedition services in cases of delayed or damaged goods. The primary objective is to explore the forms of legal protection provided to consumers for losses due to delays or damages in goods transported by expedition services, and to understand the legal responsibilities of these services in such scenarios. Utilizing a normative research method, the study examines relevant consumer protection laws and regulations governing shipment agreements. The findings reveal that consumers are entitled to various forms of legal protection, including the right to compensation in the form of refunds, replacement of goods, or payments based on the value of loss; entitlement to indemnities for healthcare costs or beneficiary allowances in cases of life-threatening harm; and the right to compensation from expedition services for material and immaterial losses beyond mere refunds. Additionally, the study underscores the government and consumer protection agencies' duty to educate and guide businesses, including expedition services. The legal responsibility of expedition services extends to compensating consumers for delayed shipments or lost goods, through either refunds or replacements. Moreover, the services are obligated to provide compensation or replacements for undelivered or damaged goods. Consumer claims for compensation can be resolved through direct negotiation with the expedition service, legal action, or alternative dispute resolution mechanisms like BPSK. The study concludes that while consumers are legally protected to obtain compensation from expedition services, the enforcement of these services' responsibilities needs to be strengthened for more optimal fulfillment of consumer rights.Highlights:
 
 Legal Protections: Consumers have the right to compensation, including refunds, replacements, or payment for losses, and indemnities for life-threatening damages.
 Expedition Services' Obligations: These services must compensate for delays, lost, or damaged goods, with options for direct negotiation, legal action, or alternative dispute resolution.
 Enforcement Needs: Despite existing protections, there is a necessity to strengthen the enforcement of expedition services' responsibilities to better fulfill consumer rights.
 
 Keywords: Consumer Protection, E-commerce, Legal Responsibilities, Expedition Services, Compensation Claims

Creation of Cattle Ranches, Grazing Route and Reserves as Solutions to Herders-Farmers Conflict in Northern Nigeria

In order to address the violent disputes between herders and farmers in Northern Nigeria, this article looked at the establishment of ranches, cattle routes, and grazing reserves. It also looked at how conflict is a social reality that exists in all human social systems, whether they are in cities or rural areas. It observes that disagreements are a common cause of conflict, particularly between the two opposing factions, the "herders," who are primarily Fulani and Muslim migrants seeking better pasture for their livestock, and the crop farmers, who are primarily from agrarian backgrounds. For data gathering, the paper used secondary sources such books, journals, articles, newspapers and other internet sources. The study discovered that there are a number of reasons why farmers and herdsmen in Northern Nigeria clash. Climate change badly executed government policies, illiteracy, a lack of a solid Alternative Dispute Resolution Mechanism (ADRM), anger and hostility brought on by the loss of life and property, and so forth are a few of these. The report suggested that pasture areas, livestock routes, and ranches be established in order to settle the disputes. The report also suggested that in order to stop the threat, the Federal Government of Nigeria should set up a practical ADRM and make sure that policies are implemented effectively. Additionally, it recommended a broad education campaign to inform the opposing sides of the risks their ceaseless fighting poses to Nigeria's progress as a developing nation.

Traditional Mechanisms of Conflict Resolution in Africa: A Pathway to Sustainable Peace in Nigeria

This study delved into the traditional mechanisms of conflict resolution in Africa; A pathway to sustainable peace in Nigeria. It deployed the qualitative method of data collection and content analysis. The work was adopted as a tool for analysis of the Peace Process theory propounded by John Darby and Roger Macunity. It ascertained that disputes or disagreements are unarguably and necessarily an inevitable part of human existence flowing directly from communication, interaction and relationships which can occur at individual, national and even international levels. Alternative Dispute Resolution (ADR) mechanism is a basket of procedures outside the traditional process of litigation or strict determination of legal rights. It may also be elucidated as a range of procedures that serve as generally involve the intercession and assistance of a neutral and impartial third party. The traditional mechanisms of conflict resolution in Africa are alien to the Western world, this paper is of utmost importance to the Western world and also enriched their pool of literature. Nigeria is a country that is dominated by various ethnic groups anchored on diverse cultures, customs and traditions. It is therefore not surprising to see conflicts arise and despite the various attempts at resolving these conflicts through litigation, it remained unabated. The paper investigated the lessons learned from Traditional Mechanisms of Conflict resolution, it also interrogated its impact on conflict resolution and the way forward. In light of the lessons that were learnt and the impact of the traditional mechanisms of conflict resolution; suggestions on how to attain sustainable peaceful society were proffered. In conclusion, the study crystallized reforms on the alternative dispute resolution introduced through the traditional mechanism which includes amongst others that constitutional recognition should be given to traditional institutions of conflict resolution to enable quick dispensation of matters.

Validity of the Arbitration Clause in the International Employment Contract: the Viewpoint of the GCC Countries

In this paper we will evaluate the significance of the arbitration clause in international employment contracts. Our aim is to understand how this particular alternative dispute resolution (ADR) mechanism is utilized in the Gulf Cooperation Council (GCC) countries. Even though the law in several countries aims to protect employees by prohibiting arbitration agreements (due to considerations of employee protection), we argue that it should be optional for the employee to enter into labour agreements with arbitration clauses. This is especially important when the arbitration agreement achieves the employees’ interests, and is agreed upon with informed and clear consent. We will engage with arguments which advocate the prohibition of arbitration agreements within Individual Employment Contracts (IECs); whilst taking the position that the flexibility, speed, confidentiality and predictability of arbitration provides specific advantages to international employees compared to litigation before court. Furthermore, in the context of a desire on the side of GCC countries to attract high-skilled labour (and when there are many misconceptions regarding the adjudicative functions of labour law courts in the GCC), arbitration clauses can play a significant role in mediating between different legal cultures.

Islamic ADR in Britain: Diversity, Hybridity, and Women’s Experiences of Community Justice

Abstract Key developments in recent decades have contributed to Islamic community justice mechanisms in Britain becoming highly politicized, with a disproportionate focus on Sharia councils. The Sharia council phenomenon, however, does not encompass the full diversity of Islamic Alternative Dispute Resolution (ADR) in Britain. This article starts by providing a more comprehensive outlook on Sharia-based ADR mechanisms in Britain by exploring a variety of forums and actors involved in this line of work, including individual imams and Sheikhs, established and lesser-known Sharia councils, and other forums engaged in religious mediation and arbitration. Based on new empirical research conducted with women users and service providers, the article goes on to reflect on ADR processes of mediation and arbitration and reveals that religious actors frequently move back and forth between counselling, negotiating, mediating, and arbitrating within one case and one setting. Finally, the article explores women’s experiences and narratives about faith-based community justice, reflecting particularly on divorce cases which involve domestic violence. Insights into how such cases have been handled by community mechanisms are provided, highlighting where the latter are falling short and identifying avenues for going forward with setting appropriate procedures and responses to protect the welfare of Muslim women.

Dynamics of Drivers of Conflict in Water-Related Resource Scarcity: Focus on Lake Turkana Basin of Kenya

Lake Turkana basin, located in Turkana County of Kenya, has become a central point for studying the dynamics of conflicts resulting from water-related resource scarcity. The study sought to identify specific drivers of water use-related resource conflicts in the basin and was anchored on the Negotiation Theory. Historically, the semi-arid and arid regions of the Kenyan borders have experienced perennial conflicts between ethnic groups in the Lake Turkana Basin that revolve around scarce water-related resources on land and in water.  Using a descriptive study design, convenience sampling accessed 36 respondents through 36 questionnaires, interview schedules, three focus group discussions (FGDs), and an observation guide.  The study findings demonstrate that drivers of conflicts were not just locally domesticated but also had external factors and influences, including dynamics associated with inflammatory political speeches and economic and environmental factors resulting in a harsh climate. Additionally, high illiteracy, with over 45% having only primary school level education, cultural pressures where 75% male domination was observed, ethnic tensions, historical grievances, scarce critical resources which were only concentrated in a few locations, and geopolitical interests of neighbouring countries contributed to conflicts in the region. In conclusion, drivers of conflict must be carefully understood for long-term resolutions. The study limitations included remoteness and lack of infrastructure in the basin. Further research is recommended to establish whether the key drivers could be reversed in their efforts to drive conflicts to manage perennial conflicts.  Alternative Dispute Resolution (ADR) mechanisms are highly recommended for managing these perennial water resource-related conflicts.

NAVIGATING THE LABYRINTH OF STATE-OWNED ENTERPRISES DISPUTES IN INDONESIA: A QUEST FOR EFFECTIVE RESOLUTION MECHANISMS

This paper critically assesses the adequacy of mediation as an alternative dispute resolution (ADR) method for resolving disputes between State-Owned Enterprises (SOEs) in Indonesia. It also explores the potential of other ADR methods for more effectively resolving such disputes specifically tailored for SOEs disputes. The paper commences by providing an overview of the mediation concept as an ADR mechanism, exploring its advantages and disadvantages. It then delves into the characteristics of typical SOEs disputes and the audit concerns associated with them. Subsequently, the paper examines international and Indonesian mediation practices, scrutinising their effectiveness and applicability in the context of SOE disputes. It also identifies the potential obstacles to using mediation to resolve SOE disputes, considering the inherent concerns of SOEs in making decisions. Based on these findings, the paper recommends the adoption of adjudication as an alternative ADR mechanism for SOEs disputes, advocating for the establishment of an Adjudication Tribunal tasked with rendering fair, impartial, and efficient decisions. Finally, the paper proposes a regulatory adjustment by identifying the potential risks associated with adjudication and providing mitigation strategies.

Labour alternative dispute resolution modes in Zimbabwe

AbstractThe study looks at the defining features of various labour dispute resolution modes and their appropriateness in Zimbabwe. Researchers used a qualitative approach to collect and analyse data, drawing on a purposive sampling method to select and distribute open-ended questionnaires to 38 participants. The study established that the alternative dispute resolution (ADR) modes used in Zimbabwe are collective bargaining, conciliation, and arbitration, all formalised and regulated by the Labour Act (2015). Nevertheless, these ADR mechanisms have numerous flaws including, that they are not ‘culturally’ close to citizens, and as a result, access to justice is still a challenge, they are also expensive and cannot be easily understood by ordinary employees. Accordingly, the study recommends that the government amend the Labour Act (2015) to return to the old conciliation and arbitration system which was decentralised to the districts. When making the amendments to the Labour Act, the government should also consult with general employees and employers, because they are the victims of the current system. Furthermore, workers’ committees and trade unions should also be empowered to support and educate employees.

Standards of independence and impartiality in the context of international commercial arbitration

In this day and age, international commercial arbitration is widely regarded as an effective alternative dispute resolution mechanism, voluntarily chosen by a majority of parties. However, a pertinent question arises: why do an increasing number of international businesses prefer international commercial arbitration over national courts to resolve commercial cases? Apart from the efficiency and convenience that international arbitration provides, the arbitrator's professional ethics play a crucial role in maintaining the credibility and legitimacy of the process. Therefore, to bolster parties' trust in international arbitration, it is imperative to uphold the requirement of independence and impartiality of arbitrators throughout the arbitration procedure. Specifically, the arbitrator plays an important role in giving effective awards in the arbitral proceeding. Hence, each arbitrator is required to be independent and impartial so that the arbitrator's award is not questioned on the ground of lacking fairness. Furthermore, in order for the appointment process to operate smoothly, the independence and impartiality of arbitrators will be challenged in the relationships with the parties or the parties' lawyers.

Alternative ways of conflict resolution in Islamic law and the possibility of their application on the territory of the Russian Federation

The subject of this study is alternative dispute resolution (ADR), namely the methods of ADR in Muslim law. The author examines in detail the methods of ADR regulated by Islamic law, such as Sulkh, Tahkim, Muhtasib, Fatwa, Med-Arb, as well as Wali Al-Mazalim, which is not currently used, but is of interest in the framework of the study. Also in the course of the study, the experience in regulating the ADR of a country like Malaysia is touched upon, in particular, aspects of regulating such methods as Sulh and Tahkim are touched upon. In the course of the study, the methods of ADR in Muslim law are compared with similar institutions in other legal systems. The scientific novelty of the study lies in the fact that it includes an analysis of existing alternative dispute resolution mechanisms in Islamic law and considers the possibilities of their application in Russia, as well as discusses problems related to this issue. The answers to these questions can become the basis for further development of legal science in the field of alternative dispute resolution methods, as well as find application in real life to reduce the burden on the courts, as well as for cross-cultural application in various fields, including with Islamic banking institutions. The main conclusions of this study are the possibility of applying Sharia law to regulate ADR, as well as a proposal to increase the possibilities of using ADR in court cases by creating a state mediation center and creating categories of cases in which the use of mediation in such a center will be a prerequisite for further consideration of the case.

Health mediation - the aseptic system for conflict management in health

Alternative Dispute Resolution Mechanisms (ADRM) are a possibility to resolve conflicts without the need to go to trial. The most used are mediation, conciliation, and arbitration. In this review we will focus specifically on mediation as an alternative for the resolution of medical legal conflicts. Where the history of the ADRM in Mexico and the evidence of the failure of the adversarial method for the resolution of doctor-patient conflicts will be reviewed. In addition, the incomplete role of the application in our country of the ADRM in the legal field will be highlighted and finally the successful experience of mediation to resolve this type of conflict in other countries of the world will be presented. In this way, the objective of this narrative review is to show that mediation can be an effective and beneficial option to resolve medical conflicts in a fair and equitable manner for all parties involved.

Volunteers Justice Scheme: A Framework for Community Justice in the South-Western Nigeria

The focus of the study is on how to improve the justice system in Nigeria by reducing court congestion and improving access to justice through community justice system. The issue of court congestion, delay in court processes, and the inaccessibility of the justice system to the poor and uneducated is affecting the sustainable peaceful co-existence and orderliness in Nigeria. The inability of government to sustainably fund the justice system is a clear pointer that there is need for a people-centered approach to reduce the burden on government and to increase accessibility. Therefore, adopting descriptive analysis method, and relying on relevant secondary data, the paper examines the pre-colonial traditional justice system in the Yorubaland (South-west, Nigeria), and post-traditional justice system in Nigeria to identify salient issues responsible for inefficiency and inaccessibility. In the process, the paper identifies community justice as an alternative justice system and proposed the Volunteers Justice Scheme (VJS) committee, which is a non-formal alternative dispute resolution mechanism, that relies on community trust, knowledge of their tradition, with little or no financial cost incurred, no technical legal requirements and time friendly; to be established in each of the wards at the local governments level, as a framework for the operation of community justice in South-western Nigeria. Among the essential for the scheme are enabling law, a coordinating center at the local government, stakeholders’ representatives to serve as volunteers, and identifying a public building in each of the wards as venues for the operation of the committee. Thus, for effective implementation of the Scheme, the study suggests constitutional amendment to integrate the Scheme into the justice system, mass education to mobilize citizens, and training of committee members for efficient operation.

‘The Full Strength of the Human Spirit’: Rwanda Launches Policy Boosting ADR Use

The Rwanda Ministry of Justice has presented to the public a new national conflict resolution policy aiming at handling disputes using alternative dispute resolution mechanisms.