Conflict Resolution Mechanisms Essay Example

powers of arbitral courts, allowing for consideration of amounts before and after the award date, and the exemption of arbitrators from liability in carrying out their duties. Despite its relative newcomer status in international arbitration, Ireland holds a strategic geographic, economic, and legal position that attracts international arbitration cases.

The International Arbitration Centre in Dublin, which was established recently, is supported by Ireland. In May 1998, Ireland took a significant step towards attracting international commercial arbitration by enacting the Arbitration International Act of 1998. Prior to this act, Ireland's arbitration system was governed by the 1954-1980 Arbitration Acts, which had similar legal power to the English Legislation before the 1996 Arbitration Act (Bloomfield, 1998: pp.79-85). Although these acts were effective for domestic arbitration, they were not suitable for international commercial arbitration because they did not consider Ireland's rapidly growing dynamic economy, especially in financial services and computers. Additionally, since Ireland is located in Europe and has a reputation for international neutrality, it is not affected by the negative connotations associated with colonial powers.

With its favorable judicial system, strong presence of major arbitration establishments, and a superior web of modern-day arbitration laws and conventions, Ireland is positioned to become an exceptional destination for international arbitration (Bloomfield, 1998: p.82).

The Advantages and Disadvantages of Litigation in Resolving Commercial Disputes

Litigation involves initiating a civil action in a court of law, where the plaintiff seeks equitable compensation for actions committed by the defendant. A judgment can be rendered if the plaintiff successfully proves beyond reasonable doubt that the defendant is responsible for the offense. The court may issue various orders as a consequence of the judgment such as awarding damages, granting

an injunction to prevent or compel an action, or establishing rights. Furthermore, declaratory judgments can be issued to preempt future legal disputes (Krisberg, 1999).

When there are contractual disputes, one party starts legal action and claims that the other party has violated the agreement. While litigation guarantees fairness in resolving conflicts, it also has some drawbacks. The main disadvantage is its expensive nature. Before going to court, various expenses like court fees and lawyer's fees have to be paid. In addition, litigation takes a long time. Specific dates for court appearances need to be scheduled, and the plaintiff must formally inform the defendant (Reichert, 2000). The process of procedural fairness is also prolonged. Time holds great value in the business sector, and lengthy legal proceedings can cause permanent setbacks that negatively impact institutions' and companies' profit margins.

Legal proceedings have various drawbacks. One drawback is the potential for bias when a local party is involved, leading to unfair judgment. Another issue arises from procedural systems lacking competency, which can affect court case outcomes and hinder fair results (Burton, 1999). Furthermore, if a particular court lacks jurisdiction over one of the parties involved, its ruling may be rendered meaningless.

In certain situations, the validity of a judgment may be affected when one person involved is immune, such as diplomatic individuals, or when the court's jurisdiction is limited and a party relocates to another state (Buchanan, 2000). William (1996: p.55) stresses the significance of privacy and confidentiality in business relationships, particularly in web marketing. The consequences of court litigation undermine businesses' market dynamics by compromising the need for privacy and confidentiality, which can impede the ongoing operation of specific businesses.

Litigation

is criticized for its lack of flexibility in approach, particularly with regards to the inflexible time format. The working hours of the court system dictate the time frame in which court proceedings are held, creating challenges for parties involved in cases presented to the court. In contrast to litigation, where litigators often feel detached in the participatory process, alternative dispute resolution allows parties to actively contribute their perspectives freely, leading to more effective resolution (Bwanika, 2004).

Judges, although experienced and skilled in various issues, may lack expertise in certain specific fields, leading to their decisions failing to address core issues and causing dissatisfaction among the parties involved. However, despite these limitations, judicial proceedings have advantages in resolving commercial disputes. One advantage is that they can provide legal precedents where none existed before (Folberg, 1997). These legal precedents can help ease the workload of future court cases and reduce overall expenses. Judicial proceedings also offer a more predictable outcome compared to Alternative Dispute Resolution. Additionally, they allow for appeals in cases where one is unsatisfied with the judgment passed.

The enforceability of a judgment is a characteristic of the judicial process, which allows individuals to assert their previous position. This helps eliminate unfairness, as it prevents one party from unjustly benefiting over others. The execution of the final judgment is treated with seriousness, as it ensures that the proper legal procedures are followed. This includes providing procedural safeguards such as cross-examination (Folberg, 1997: p. 28).

This ensures fairness in judgment as it protects individuals from rumors that could impact the outcome of the judgment. Application consistency is guaranteed by following rules of jurisprudence that have been previously

validated. Precedence is a part of these norms and maintains consistency in similar cases. This also emphasizes the importance of judicial proceedings. To ensure competency, which is crucial in building trust among clients, judicial proceedings provide structured public procedures for judges and other court staff to ensure that they are qualified in their respective fields. This is necessary as they play a significant role in the final decisions made (Grace, 2002).

Litigation provides a range of options, including orders, injunctions, and retaliatory justice. These options are important in situations involving patent rights and the protection of individual innovations. These options are not available in Alternative Dispute Resolution mechanisms like mediation (Krisberg, 1999).

Corporations have various Types of Alternative Dispute Resolution mechanisms to avoid litigation

Litigation is one way that establishments can address corporate conflicts, but it is not the only option. There are several other mechanisms that corporations can use instead of litigation.

The first topic to be discussed is mediation. Mediation is a form of Alternative Dispute Resolution that has been around for a while (Folberg, 1997: p.50). It is used by one or more parties to reach an agreement. The parties have the opportunity to determine the terms of the settlement reached. Mediation involves the participation of multiple parties in order to find practical solutions to their disagreements. A mediator selected by both parties uses appropriate skills to initiate dialogue among the disputants.

Third-party assistance is utilized to settle a contract or understanding in a more impersonal and cost-effective manner compared to legal proceedings. This approach ensures privacy and confidentiality, which helps maintain ongoing relationships. Additionally, it offers greater flexibility in engagement

and results in mutually satisfactory resolutions.

Compared to dialogue, mediation and arbitration both offer alternative methods for resolving disputes. Mediation involves the parties willingly changing their positions, as opposed to arbitration where a third party makes binding decisions based on a review of the case. Arbitration can be legally binding or non-binding, resembling mediation in the latter scenario.

However, the role of the arbiter is simply to make a decision and not participate in helping parties find common ground. Expertise is valued, so competent individuals are involved in making the final decision. Similar to mediation, arbitration is quicker, more affordable, confidential, and less expensive. It is also flexible, making it easier to implement in other countries with fewer limitations.

The text discusses the advantages and disadvantages of arbitration as well as the mechanism of negotiation. Arbitration provides a space for making binding decisions without the need to go to court, but it lacks a right of appeal. Additionally, arbitration awards are not directly enforceable, so further legal action may be required for enforcement. This contradicts the perception that arbitration is less expensive. On the other hand, negotiation involves using dialogue to resolve disputes, with trained negotiators employing various tactics to present their case.

The role of an advocator in a tribunal of jurisprudence can be likened to Adept Determination. Adept Determination is also a type of Alternative Dispute Resolution, but it differs from arbitration because there are no statutory models governing it. Instead, the parties or the contract itself may stipulate the appointment of an independent expert who will provide a factual decision on the disputed issues within a specified timeframe.

The expert's conclusion states that there is limited

evidence for entreaty in a judicial tribunal. Therefore, when parties choose Expert Determination as an option to resolve disputes, they must accept and be satisfied with the expert's determination (Gelinas, 2000). In the case of Health Service Executive -v- Eamon Keogh trading as Keogh Software, two interlocutory applications were made to the tribunal, one by the Plaintiff and one by the Defendant. The Defendant had a contract with the Plaintiff to maintain package and systems supplied by the Defendant. These were used in approximately 180 sites within the state for radiology, environmental health, accident and emergency, and hospital charge parliamentary affairs. The contract included an expert determination clause which stated that an Independent Expert's determination would be final and binding on the parties, with no right to appeal in court unless there was a demonstration of error. Both parties were required to mutually appoint an expert, or if they failed to do so, the president of the Law Society would intervene to make the appointment.

The tribunal relied on a previous case, Re Via Networks (Ireland) Limited [2002] 21/R/47, in which it was held that when parties choose to arbitrate, they waive their right to seek further determination from a non-arbitral court. Additionally, an expert determination clause also removes the involvement of judicial tribunals.

The role of commercial tribunals and the promotion of Alternative Dispute Resolution mechanisms

Ultimately, both tribunals and Alternative Dispute Resolution mechanisms cannot be approached in isolation if favorable solutions are to be achieved. Each has drawbacks that are strengths of the other.

Governments have the responsibility of promoting trade and investment while also addressing any barriers that impede business opportunities for their citizens. William (1996)

states that a significant hindrance to trade and investment is the lack of efficient and affordable mechanisms for resolving commercial disputes. Disputes commonly arise in trade and business transactions, causing companies to hesitate in establishing business partnerships with foreign nations if they are unsure about the existence of a suitable dispute resolution process.

In general, Alternative Dispute Resolution (ADR) mechanisms offer three main advantages. They are fast and cost-effective, provide innovative solutions not solely based on court preferences, and promote less confrontational approaches for long-term working solutions. On the other hand, judicial proceedings provide binding solutions and establish the application of precedent, which is crucial in addressing similar disputes (Buchanan, 2000).

To combine both ADR mechanisms and judicial proceedings, legal frameworks must be developed. The European Union and United Nations Commission on International Trade Law have taken steps towards this goal by creating soft law. The Commission extensively consulted before adopting a proposal for a directive on certain aspects of mediation in civil and commercial matters (Gramberge, 2001). Following the consultation process, it was concluded that legislation should focus on ensuring a beneficial relationship between mediation and judicial proceedings.

On the other hand, the European code for mediators was introduced as a self-regulatory tool to establish standards for the mediation process and the appointment and accreditation of mediators. In Thailand, courts successfully practice conciliation (mediation), which shifts the country's role from a traditional passive judge in an adversary system to a more active judge in the inquisitorial system. The ultimate goal of both litigation and ADR is to ensure effective enforcement of judgments or awards. Court-annexed arbitration aims to provide solutions when parties do not include an arbitration

clause in the contract, leading to further civil action.

This text discusses the agency of affecting justice in instance direction (Burton, 1999). It emphasizes the importance of using both judicial proceedings and Alternative Dispute Resolution (ADR) approaches to ensure the efficient use of court regulations. It also highlights the need for sole legal power in enforcing arbitrational awards in international affairs and assigning expert witnesses (Krisberg, 1999).

Recommendations

The implementation of integrated systems of ADRs and judicial proceedings should focus on supplementing rather than replacing each other. This entails mainstreaming both institutions and organizations to ensure equal provision of services (Reichert, 2000). To facilitate enforcement, ADR mechanisms should be institutionalized in countries' constitutions and laws. This ensures that proper frameworks are established for applying these mechanisms.

The globalisation of the commercial industry, especially in information and communication technology, has greatly influenced conflict resolution methods. This sector is well-positioned to employ technology to streamline the process and reduce the time spent on conflict resolution. With the implementation of these techniques, bureaucracies involved in conflict resolution can also be effectively addressed (Grace, 2002). Online settlement, utilizing modern technologies, modifies the traditional form of arbitration by allowing for both synchronous and asynchronous communication. Synchronous online arbitration requires all parties involved and the mediator to be present simultaneously through a video-conference link, while asynchronous arbitration utilizes panel discussions and email as alternative communication methods.

The benefits of online arbitration are that it allows parties to save time and money by not requiring everyone to be present at the same time. Messages in asynchronous arbitration can be sent and received quickly. Alternative Dispute Resolution mechanisms do not offer complete freedom and are partially influenced

by legal proceedings for legally binding agreements. This issue should be addressed to promote their use and increase confidence among those who choose to use it. Currently, most projects that involve both judicial and Alternative Dispute Resolution mechanisms are experimental in nature.

It is important to encourage and integrate Alternative Dispute Resolutions (ADRs) in more states, especially in those that already have customary Torahs promoting ADRs in their judicial systems (Folberg, 1997). A major hindrance to the effective implementation of these mechanisms is the lack of competent personnel. Therefore, there should be a focus on training personnel to be well versed in these systems to ease the workload and ensure equal service delivery. In conclusion, ADR and traditional litigation are essential conflict resolution mechanisms in commercial law. To achieve the best results, they cannot be isolated but instead require interdependence in various scenarios, from developing business regulations to international marketing.

This paper has therefore highlighted the need to ensure the development of Alternative Dispute Resolution mechanisms and their impact on the sustainability of business entities as well as changes to their applications.

References

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Reichert, K. 2000. Ireland's New International Commercial Arbitration Law, American Review of International Arbitration, 379.

William, F. 1996.

Dispute Resolution Mechanisms in International Contracts: the Sale of Goods. Washington DC, Catholic University of America.