• Arbitration is an ADR (alternative dispute resolution) method where
the disputing parties involved present their disagreement to one arbitrator or a panel of private, independent and qualified third party “arbitrators.” The arbitrator(s) determine the outcome of the case. While it may be less expensive and more accessible than trial, the arbitration process has well-defined disadvantages. Some of disadvantages include the risk losing, formal or semi-formal rules of procedure and evidence, as well as the potential loss of control over the decision after transfer by the parties of decision-making authority to the arbitrator. By employing arbitration, the parties lose their ability to participate directly in the process. In addition, parties in arbitration are confined by traditional legal remedies that do not encompass creative, innovative, or forward-looking solutions to business disputes. • Due to this flexibility of Arbitration process the negotiating parties have control over the selection of an Arbitrator of their choice
• The Arbitrator is not necessarily be the
Lawyer • In arbitration, the parties do not create their own settlement. Instead, the arbitrator imposes a resolution on the parties, bounded only by the limitations articulated in the parties’ agreement
• Unlike in traditional litigation, the
arbitrator’s decision generally cannot be appealed • Arbitration was developed by the merchant class in medieval Western Europe • In the medieval period, merchants traveled to fairs where they could meet and conduct business with other merchants • Because these fairs occurred far from the merchants’ homes, and because the merchants did not Stay at any particular fair very long, it was important for the merchants to create a system to resolve the disputes that would inevitably arise from the business conducted at the fair • Unfortunately, the common law court system was not an appropriate venue for the resolution of these disputes because of its complex procedures • Moreover, the common law courts had little understanding of the customary norms the merchants followed • Merchants were interested in a system that would resolve disputes 1. Quickly 2. And in accordance with industry standards • Arbitration may be used to resolve virtually any kind of dispute; however, some disputes may be particularly well-suited to this resolution process. For instance, arbitration may provide benefits to parties who have a relationship with one another that is likely to continue after the dispute is resolved • Because arbitration is less adversarial than litigation, the process may help Binding arbitration • Binding arbitration is a means of resolving a dispute that is private, less formal,less costly and less time consuming than traditional litigation.the parties agree to submit their dispute to an impartial arbitrator authorized to resolve the controversy by rendering a final and binding award. Non binding arbitration • A non binding arbitration means either party can appeal the decision and,typically request a court trial.these are often used to try to resolve cases to take them off the courts docket,usually for smaller dollar cases.employment cases are binding arbitration cases because employee is forced into binding arbitration because they were required to sign an agreement to do so as a condition of employement.most employee rights attorneys attorneys would prefer to go The Benefits Of Arbitration As A Method Of Dispute Resolution • 1. Confidentiality • In contrast with judicial proceedings, arbitration proceedings are held in private. This is of particular relevance in disputes involving commercially sensitive matters which the parties would prefer to exclude from the public domain. • 2. Expert Arbitrator • The Arbitrator may be selected on the basis that he or she has particular qualifications, technical expertise or specialist knowledge relevant to the subject matter of the dispute. As the Arbitrator is already well versed in the area, there is no necessity to expend time and money on informing him or her. The Arbitrator may be nominated by the parties to the dispute themselves. Alternatively, the parties may decide that a particular Institution be charged with appointing a suitable Arbitrator. • 3. “Party Autonomy” • The parties may retain a degree of control over resolution of the dispute. As there is no obligation to conduct Arbitration proceedings in any particular manner, the parties are free to agree all procedural and evidential matters. Arbitration is generally perceived as a more time and cost efficient method of disposing of disputes than litigation and where parties choose to actively participate in the management of the proceedings, this can certainly be the case. Party Autonomy choice of tribunal, choice of procedure, choice of place of arbitration
It is well settled that when parties
submit their dispute to a private contrary intention, they confer upon that tribunal a discretion as to the procedure to be adopted in reaching its decision. Direct Participation and Communication between Disputants • More direct participation by the disputants in the process and in designing settlements. • More direct dialogue and opportunity for reconciliation between disputants • Potentially higher levels of confidentiality since public records are not typically kept • More flexibility in designing creative settlements • Ground Rules for arbitration Ground rules We ll work to reach the fairest and most positive agreement for both of us. We ll practice active listening and sincerely seek to understand each others interest nd concerns We agree nd follow instructions of arbitrater We agree to take turns in speaking :we wont interrupt each other. Finality of the Award • Awards made by the Arbitrator are ordinarily understood to be final and binding and may only be set aside in certain limited circumstances. However, the lack of a real right of appeal may be unpopular with a disgruntled party who considers an erroneous award has been made • One advantage to arbitration is that the parties can provide the arbitrator with discretion to award monetary damages, nonmonetary damages, or a combination of both • In employment disputes, for example, parties could agree that the arbitrator has the power to reinstate an employee who has been discharged, perhaps with back pay and other employment benefits Enforceability of Awards • Arbitration may be particularly appealing in the context of international commercial disputes as it is often significantly easier to enforce an Arbitration Award in other jurisdictions than a Court Order.
Arbitration as an alternative method of
dispute resolution continues to increase in prevalence and popularity, particularly in Approach's of Arbitration • Court-annexed arbitration: one or more arbitrators, usually lawyers, issue a non-binding judgment on the merits after an expedited, adversarial hearing. The arbitrator's decision addresses only the disputed legal issues and applies legal standards. Either party may reject the non-binding ruling and proceed to trial; • Private arbitration: administered and managed, by private organizations, or non-administered and managed by the parties. • Court Referred: the case may be referred by the court Conduct of Arbitral Proceedings • Equal treatment of parties • Determination of rules of procedure • Place of arbitration • Commencement of arbitral proceedings.- • Language • Statements of claim and defence • Hearings and written proceedings • Default of a party.- Elements of Arbitration i. Existence of agreement to refer the dispute to arbitration ii. Arbitral tribunal must reach decision based on the facts iii. The decision is binding on the parties – enforceable as a court order Conclusion • The proceedings of both Mediation and Arbitration may not be used for subsequent trails • The arbitrators imposes the agreement on the parties • The arbitrator can not be appealed • Can not be challenged in the court • Pre and post agreement • Limited judicial review unless one sided