MLC101 Business Law

Question:

Essay Topic: It’s more effective to resolve disputes in domestic or international business, consumer, and commercial matters through court proceedings than alternative dispute settlement (“ADR”)

Do you agree?

Discuss

1. Use key principles in law for commerce to recognize legal issues and assess them.

2: Analyze and interpret legal issues within domestic and international contexts.

3: Use appropriate technology to search for, retrieve, and apply information relevant to law-related commerce.

Answer:

Introduction

Alternative dispute resolution is an alternative method of solving disputes. It can be used to complement the existing justice system in a country, making it more efficient.

It is also cost-effective, saves time, and can be used to resolve conflicts.

A number of parties are wasting a lot time, money, and effort by hiring lawyers or filing lawsuits.

ADR can also increase the satisfaction of its users. It makes it easier for the parties to have smooth relations.

It is rare that parties stay in close contact after the settlement of a case.

ADR can increase the effectiveness of courts by decreasing the burden of cases.

This paper will give you a clear overview of ADR in domestic, commercial, and international disputes.

ADR is a dispute resolution procedure that provides a complete alternative to litigation.

ADR, unlike lawsuits, brings in a third person to help conflicting parties find an amicable solution.

There are several types of ADR.

There are many types of ADR procedures.

This method is voluntary communication.

The parties in conflict talk to each other and come to an agreement.

Negotiation can be classified as ADR prevention, or a conflict prevention process.

Mediation is the second form of ADR.

The mediation process involves the involvement of a neutral and independent third party to help the parties involved in conflict.

Because mediation involves the involvement of a third person, it is similar to negotiation.

It is important to note that the role of the third person is not to give advice or make decisions, but to facilitate.

Conciliation is the third.

This process is used most often by Labour Relations Commission to solve industrial disputes.

This method is widely used to resolve disputes in the construction sector.

It is considered an advisory process.

It involves the involvement of a third party to help the participants assess the problem and support them in reaching an agreement.

After conciliation, arbitration is used, which is also called determinative ADR.

All determinative methods have a third party neutral who listens and decides on the case.

An adjudication is another example of a process that can be used to determine a case.

While the methods mentioned above are most well-known, there is another category called Collective ADR.

This method is used in multi-party disputes, where parties don’t wish to resort to litigation.

Ombudsman Schemes are one example.

Judicial ADR is the final option.

These dispute resolution processes are used to resolve disputes between parties. However, they can be used when they file a suit but decide to settle the case during the litigation process.

Overview and Objectives of ADR

ADR procedures are often used to help achieve the policy objectives.

ADR methods, such as mediation and conciliation, are part of the statutory systems in Ireland (Cox, 2012).

In Australia, the Australian Conciliation & Arbitration Commission also has the responsibility of overseeing ADR processes.

While there are several methods of ADR, each country has its own application.

ADR can be used in one country only, or it can be spread throughout the country.

ADR can deal with many kinds of conflicts.

These disputes can include employees vs. management and consumer vs.commercial, as well government vs.government.

ADR can be used to resolve such conflicts.

A number of different methods and applications could produce different results when examining the effectiveness of ADR. This can lead to a complex conclusion.

A local law may have different laws that could affect the legal remedies of ADR.

All that said, ADR is effective in many instances.

Cost effective

ADR can be used to resolve domestic disputes, such as employees vs. their management. There have been numerous studies that show it is cost-effective.

The American Arbitration Association, 2010, stated that ADR methods that are informal and quickly resolve disputes (e.g. employees vs. management) can save a lot of money and avoid the usual costs associated with litigation.

Similar to litigation, arbitration is more predictable than litigious.

Arbitration is more likely to deliver a fair judgment than the trial.

ADR can be used to solve domestic disputes. This allows for flexibility and reduces costs.

These benefits can even be greater if you are involved in international conflict.

It is easier for parties to cross borders without incurring additional costs.

A foreign court may also resolve the case, but it can be a huge battle.

According to Campbell, 2010, many parties try to avoid situations where their case will be heard in a court outside their country. This includes the court of the foreign court.

One party fears that the other side’s court will rule in favor of the company located within.

Arbitration is becoming increasingly popular over litigation for many reasons.

Arbitration is becoming more popular than litigation for many reasons.

Parties also avoid litigations because they are expensive and take too much time, just like in the United States.

It is also quite expensive and can lead to a very hostile relationship between parties.

Time Savings

When evaluating ADR’s effectiveness, it is interesting to look at the time taken to resolve a dispute.

It would be interesting to then compare this time with a lawsuit process.

Time to disposition is another name for such time.

It is usually the time taken between the filing and the settlement.

The study by Amsler and colleagues, 2009 found that ADR reduced the time taken to resolve cases. It also saved employees around 88 hours.

A study conducted by (The Study Centre for Consumer Law- Centre for European Economic Law) found that consumers prefer to be able to quickly resolve their disputes through negotiation, rather than relying on their legal rights.

A consumer can seek redress by requesting delivery, repair, replacement or refund for any product or service.

Because businesses are more likely to engage in repeat business with customers, it has become more common for businesses and organizations to establish formal complaint handling programs within their company to address consumer disputes as they arise.

Other effects

You can easily measure the direct results such as time and cost.

ADR also offers other benefits to participants.

Some of these benefits are even beneficial to non-participants.

Others benefits include when an employee and employer use ADR, and the employee is able to keep his/her job.

The increased effectiveness of courts can also be an impact. This one can be a boon for firms that have to go through the court.

This means that they can choose to settle their case elsewhere.

Another advantage is the reduction in lawsuits, which helps to speed up the process for those involved in litigation (Tarr (2014)).

Conclusion

ADR can save both time and money, as there is ample evidence.

ADR, such as arbitration, can provide final solutions. However, other methods, such as negotiations and mediation, could fail and the parties may end up in court.

This is why it would be beneficial for policy makers to improve the effectiveness of the judicial systems and increase awareness to the public that ADR can also achieve the same solution as the court.

References

Business law.

Oxford: Oxford University Press., p. 378.

American Arbitration Association (2010).

Handbook on employment arbitration.

Huntington N.Y., Juris.

L. Amsler and T. Nabatchi of Nabatchi, Senger, J., Jackman, M. (2009).

Dispute Resolution, the Vanishing Trial: Comparing Federal Government Litigation to ADR Outcomes.

Ohio State Journal on Dispute Resolution Vol 24(2).

The Study Centre for Consumer Law- Centre for European Economic Law (2006).

Alternative remedies for consumer redress that are not available through regular judicial proceedings.

Final Report, page 46.

International dispute resolution.

Judicial policymaking and the judicial proces.

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