bureaucracy plays in serving the public, particularly in a democracy. Does representative bureaucracy theory suggest another way to consider bias in ADR generally, and mediation specifically, as informal dispute resolu- tion? In the USPS REDRESS Program, mediators are independent con- tractors; the USPS hires and pays them for individual cases once they are on the REDRESS roster. In this capacity, while not public employees like administrative law judges who mediate as settlement judges, they never- theless serve an analogous function. Because the USPS is a federal organ- ization, it handles the informal complaint and conciliation stages of Title VII in house; formal complaints go to the EEOC. Mediators serve a pub- lic role; the diversity of the profession is a public policy issue that receives continuing attention. This section briefly reviews representative bureau- cracy and its relationship to selected legal scholarship on diversity in the mediator and arbitrator professions.
More than three decades after Delgado et al.’s warning about the po- tential prejudicial consequences of relying on informal disputeresolution, we have insufficient evidence to conclude whether ADR favors or disfa- vors women (or men) or minority (or majority) disputants or is unaf- fected by disputants’ identity characteristics. Despite some notable efforts to investigate the concerns raised by Delgado et al., the evidence is too contradictory and methodologically fragile to reject those concerns. Nor does it offer a basis for identifying contexts in which explicit or implicit bias might be more or less significant. Contemporary politics give no rea- son to believe that the level of bias within the general (or elite) popula- tion has diminished and, therefore, no reason to believe that the potential for bias to affect disputeresolution processes and outcomes has waned. Indeed, recent social psychological research on implicit bias should heighten, rather than diminish, the concerns Delgado et al. raised so long ago.
proceeding to litigation over the last five years. This is largely due to the ATO’s sophisticated DisputeSystemDesign (DSD) and the ATO’s internal use of ADR methods, including the implementation of initiatives such as in-house facilitation (mediation), the dispute assist program, and independent review. Hoyer and Holland are proposing to trial a coaching model specifically designed for ATO operatives (auditors and objections officers) to build their disputeresolution capacity and improve the way in which they deal with tax disputes. It is envisaged this coaching model will complement the ATO’s toolkit for resolving tax disputes, and influence positive cultural change within the ATO.
given an opportunity to be accompanied by a person of their choice (Heckscher, 1994). Thirdly, due process requires that the hearing be conducted before an impartial person or panel. For hearings within the workplace conducted by supervisors, senior managers and panels, this requirement gives rise to an important training need in terms of understanding the role of fairness and ethics. Poorly constituted panels and biased managerial decisions may fall foul of later tribunal or court proceedings. Fourthly, the impartial person or panel must provide reasons for the decision (Jameson, 1999). The decision should be provided to the employee in writing and should provide a clear rational explanation for the outcome of the dispute. Finally, the employee should be given a right of appeal if dissatisfied as with the decision of the hearing. In general, disputeresolution clauses in Australian enterprise agreements provide access to the AIRC. Those which do not provide access to an industrial tribunal run the risk of parties turning to litigation to resolve the matter. These steps should be conducted in a time-efficient manner in order to provide justice to the disputants and also to avoid creating the impression that management is not interested in doing anything about the matter; thus risking the possibility that the disputants will turn elsewhere for resolution.
We conclude by relating our …ndings with the study of optimal taxation with mechanism design, a large literature that dates back at least to Diamond and Mirrlees (1971). The issue of tax evasion is of course a main concern of policy-makers. Tax auditing is an imperfect system to tackle tax evasion, and one may want to complement it with direct mechanisms that discourage income under-reporting, especially by high income earners. And at the same time, a concern of the optimal taxation literature is that the tax system does not reduce the incentives to work and increase one’s income. Our results may be related to these issues. We have found that the optimal mediation mechanism simultaneously discourages weak players from falsely reporting that they are strong, and minimizes the equilibrium incentive that they militarize and become strong in the …rst place. This suggests that results that identify taxation schemes that do not upset income generation incentives may also provide insights on how to foster truthful income reporting.
They analysed DRB applications in the 1355 construction projects in the United States between the years 1975 and 2006 and the empirical evidence presented includes data related to the type of construction projects that had DRB’s as part of their contract documents. In this respect, the project types are divided between the three construction sectors, namely: building, highway and tunnel; as well as, project construction value. In addition, the effectiveness of DRB’s in resolving construction disputes and preventing their escalation to other more protracted disputeresolution methods like arbitration and litigation is determined and correlated with the construction type. Thus, the DRB Effectiveness Ratio is calculated as the ratio between the number of disputes settled in a given DRB hearing and the original number of disputes heard or brought forward to the DRB for recommendation. The results of the study indicate that dispute review boards have been successfully implemented in all of the three construction sectors in the United States with DRB effectiveness ratios in excess of 0.9 being observed in a significant number of projects. The paper also discussed the current costs associated with DRBs. In general the costs of a DRB will “vary depending on how often the Board is asked to resolve disputes” but in general does not exceed 0.25 percent of the total project value for project with complex disputes (DRBF 2006). A study of 156 construction projects from the California Department of Transportation (Caltrans) having a total construction value (original bid amount) between $430 million and $1,045 million indicates that DRB implementation total costs range between 0.01 and 0.72 percent of the original construction value or bid estimate. It is claimed by Menass and Pena Mora that these cost estimates of having a DRB on the project are significantly lower than the cost of incorporating other alternative disputeresolution techniques and they cite Zucherman  in support of their argument. “For example, Zucherman (2007) reports that if a blue ribbon panel of arbitrators is chosen to assist in the resolution of a dispute, then each member of the panel will be paid between $7,000 and $8,000 per day (Zucherman 2007). ”
Many disputes have been settled recently through the resort to ADR and the fact is not in doubt that Alternative DisputeResolution Mechanism (ADRM) is fast becoming the best method not only as a complementary or alternative mechanism to litigation but also as the best strategic method of resolving certain private disputes which matrimonial causes is first. The dispensation of justice in Nigeria today is plagued with delay such that the various courts are inundated with cases which last for several years before they can be determined by courts. Long adjournments, cumbersome and rigorous procedure, difficult and ambiguous rules of evidence and other several artificial obstacles are largely responsible for the delay which has so much haunted the dispensation of justice system for so long. The effects of the foregoing scenario are that litigants are often frustrated; suspects are detained for years without formal suspects who ought to be tried and punished for offences committed by them to escape without punishments. Cost of litigation has soared and with the excruciating effect of inflationary trend on the economy, many litigants can no longer pursue ligation cases (Ogundayisi, 1995).
Disputeresolution council is emerging institution in Iran and other countries. This research is inductive. The current study is also correlative since it seeks to investigate the relation between dependent and independent factors. It is a periodic study because it studies a specific period and it can be an applied research. We used a questionnaire included 15 questions and distributed amongst clienteles of disputeresolution council of Torbat- Heydarieh and 450 people respond to the questionnaire during 6 months of 2013. Results of the research indicated that clienteles were not satisfied about behavior of clerks and members of disputeresolution council. Moreover, people were not satisfied about knowledge of employees and members related to of the disputeresolution council in Torbat-Heydarieh, whereas, were satisfied about processing time of solving problems by employees and members related to of the disputeresolution council.
Alternative Dispute Resolution in the International Context The North American Free Trade Agreement SMU Law Review Volume 46 | Issue 5 Article 11 1993 Alternative Dispute Resolution in the Internation[.]
Creating procedural rules that are both equitable and accessible is a vital task. But if our system of civil procedure is to offer a fair and just forum for the resolution of disputes, we will need to pay attention to the rise of deformalization among many shifts that favor well-heeled actors at the expense of the less powerful. This, in turn, will require attention to resurging inequality and the many measures that its defenders are putting into place, not merely in procedural law but across the board.
In May 2003, the dispute between COMMISA and PEP began when COMMISA disagreed with PEP’s decision to fully complete the platforms before moving them into the Gulf. 39 Unable to reach an agreement, the parties decided to enter into a new contract, which contained the same arbitration and administrative rescission provisions as the original contract. 40 In March 2004, the dispute came to a head when PEP administratively rescinded the contract, forcing COMMISA employees from the worksite. 41 In December 2004, COMMISA filed a demand for arbitration with the International Chamber of Commerce, per the terms of the contract. 42 At the same time, COMMISA filed an “amparo action” 43 with the Mexican district court, to challenge the constitutionality, appropriateness, and timeliness of PEP’s invocation of administrative rescission. 44 The Mexican district court found for PEP in the amparo action, but arbitration had already begun in May 2005, before the court reached a decision. 45 In December 2007, two developments in Mexican law led to COMMISA’s claim against PEP being barred in Mexico: the forum for public contracts was changed to the Tax and Administrative Courts, which no longer allowed arbitration of such contracts, and the statute of limitations on such claims was decreased from ten years to forty-five days. 46 Another significant change in Mexican law occurred in May 2009, when Section 98 of the Law of Public Works and Related Services was enacted. Section 98 stated that disputes arising out of administrative rescission and early termination of a contract were no longer subject to arbitration. 47
What make the cases, Launder v Czech Republic 3 , and CMS v Czech Republic 4 , controversial in arbitration history is that different tribunals arrive at different decisions with essentially amounted to the same dispute. Mr. Launder, a U.S. citizen, and his Dutch investment vehicle, CME, initiated arbitral separate arbitral proceeding against the Czech Republic under the U.S.-Czech Republic BIT and the Netherlands –Czech Republic BIT in 1999 and 2000 which were held in London and Stockholm respectively. The issues before the tribunals related to expropriation, fair and equitable treatment, full protection and security and compliance with minimum obligations under international law. Both the U.S.-Czech Republic and the Netherlands –Czech Republic BITs had similar provisions in the prohibitions on the arbitrary and discriminatory treatment of investment.
Conciliation is process by which representatives of workers and employees are brought together before a third party with a view to persuading then to arrive at an agreement by mutual discussion between them. The Industrial Dispute Act, 1947 and other states enactments authorize the government to appoint conciliators charged with the duty of mediating in and promoting the settlement of industrial disputes. A conciliation officer may be appointed for specific area or for specified industries in a specific area or for one or more industries either permanently or for a limited period. In conciliation, the ultimate decision rests with the parties themselves but the conciliator may offer a solution to the dispute acceptable to both the parties and serve as a channel of communication. The parties may accept his recommendations for settlement of any dispute or reject it altogether. If conciliation fails, the next stage may be compulsory adjudication (Mandatory settlement of industrial dispute by labour courts or industrial tribunal or national tribunal under the Industrial Dispute Act, or under any other corresponding state affairs) or the parties may be left to their choice. In cases where a settlement is arrived at , they can record the settlement and in cases of failure of the conciliatory negotiations ,they can send a failure report to the appropriate government.
Interestingly, the arguments used to sell ‘regulatory takings’ and alternative disputeresolution mechanisms always link foreign investment protection to ethical issues regarding security and corruption: there is lots of corruption and political instability in their ‘not so well-ordered’ countries, hence the need to protect ‘our’ investors. Whether or not Mexican courts are actually ‘notoriously corrupt’ 64 becomes irrelevant. Even more ironic, not even US courts have been deemed to be sufficiently ‘neutral’ and the cases have been taken to the ‘offshore legal venue’. What is of interest to us here is the manner in which a global (in this case hemispheric) design of pacification is linked to a local history, through the imaginary construction of the other as ‘unlike us’. Franz Fanon, writing in the context of the struggle against colonisation, described this mechanism with the term ‘transitivity’. His analysis provides a way to clarify Nader’s association between the rise of ADR and what she terms the ‘therapy paradigm’. This association explains, in turn, the parallelism between the domestic and the transnational forms of alternativity and exceptionality in disputeresolution: there is a particular philosophy of history at work here, one of time unleashed and projected in linear manner towards the future. The analysis of a particular case of the pacifying use of ADR bring us back, in full circle, to the non- correspondence of space-time and to the state of exception where the missionary courts of then and now situated their jurisprudence.
For a project to be executed the main parameters are three parties viz, the owner, an engineer and the contractor. The agencies who carry out the work of infrastructural development of the nation are mainly the engineers and the contractors. As a result of rapid multidimensional growth of the construction industry, the nature of the problems arising during the execution is becoming more complex and has varied nature. The non-meeting of minds gives rise to disputes between two or more parties mainly between owners and the contractors. Dispute arises when there a difference of opinion between the parties about certainty of a questions dispute implies an ascertain of right by one party and repudiation thereby of another. Due to disputes the work is many times stopped and the progress is hampered giving set back to the development situation leads to a state of non-meeting of minds between persons which may lead to dispute. Some other variables like geographical conditions, geological conditions, topographical conditions, climatic conditions, environmental conditions, strata variable etc. These variables are nature made, the prediction about the nature is very difficult. The uncertainties regarding all parameters of mind, their own level of thinking and different approaches towards their aim hence meeting of minds between two or more persons probably is very less. The one has ability of sense, which makes them feel and give direction to work. Each human being has there fixes state There are many variables which govern development this industry such as man, material, and machines. Amongst these variables materials and other resource play an important role.
All these questions have been answered by the various pieces of World Bank and USAID sponsored research on ADR in Nigeria. One of such sponsored research projects led to the setting up of the Lagos Multi-Door Courthouse (LMDC), the first court-connected ADR centre to be established in Africa on 11 June 2002, which has helped in freeing the court’s judicial resources for those cases which could not be resolved by the parties themselves. Thus, the Multi-Door Courthouse has become a convenient dispute clearinghouse for Nigeria’s bogged down courts system. Disputing parties also have the option of participating in an informal, yet structured process that reduces the costs, time and emotional strain that are usually associated with litigation. Between 2002 and 2006, the LMDC handled a total of 268 cases, with a turn-around time of 3 months from filing to case disposal. In one case, a trial judge referred the parties, one of whom was Nigeria’s former Vice President, Dr. Alex Ekwueme, to the LMDC after 17 long years in court. The matter was settled the same day, to the surprise and relief of all parties (Uzoechina 2008).
Alternative Dispute Resolution SMU Law Review Volume 64 | Issue 1 Article 3 2011 Alternative Dispute Resolution Will Pryor Follow this and additional works at https //scholar smu edu/smulr This Articl[.]
Alternative Dispute Resolution SMU Law Review Volume 65 | Issue 2 Article 4 2012 Alternative Dispute Resolution Will Pryor Follow this and additional works at https //scholar smu edu/smulr This Articl[.]