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ACAS: Alternative Dispute Resolution Add in library

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Question:

Evaluate the purpose of Alternative Dispute Resolution with particular reference to the services provided by Acas, assess to what extent it is a successful means of resolving disputes outside the formal judicial process?
 
 

Answer:

Alternative Dispute Resolution:

Introduction:

In recent time it is noticed that the burden upon the court of law is too much as to the cases are concern. Number of litigants is increasing along with the number of cases. From small to smaller cases are also approached to the courts of competent jurisdiction, but the number of courts and adjudicators has not been increased as to the incensement of the cases (Ali, 2013). By virtue of that the load on courts regarding the cases are very much influencing for any alternative way in relation to resolving the disputes among the concern parties who are seeking justice from the judicial system. The cost in judicial matters are also very high in comparison, as all the justice seekers may not be as such financial sound but they are entitle to get the justice, in spite of that they have to incurred a good amount of expenses in relation to the court procedures. Here alternative dispute resolution plays an effective as well as very vital role in the field of resolution of disputes (Chern, 2011). Many courts has also recognized the alternative dispute resolution and observed that alternative dispute resolution is very much essential for the society for the purpose of resolving the disputes in a rapid speed with a lesser amount of expenses in comparison to the judicial proceedings (Brenninkmeijer, Jagtenberg and De Roo, 2006).  

 

Modes of Alternative Dispute Resolution (ADR):

1. Mediation: In this process of alternative dispute resolution, where if the parties could not came into a mutual point of settlement by way of some negotiation from both the parties as to their interests, then they, at their will, may appoint a mediator in respect of resolving the matter in dispute. In this process they have to make an agreement upon the final and conclusive decision given by the mediator shall have the binding force upon the parties to the dispute (Cammaerts, Mattoni and McCurdy, 2013).

2. Negotiation: The main matter of concern in the process of alternative dispute resolution is negotiation from the part of the parties to the dispute. If either of the parties is reluctant to the concept of negotiation in relation to resolving the matter in dispute then the process is not possible at that stage. Negotiation is the only affecting way which may compel the parties to the dispute under the same roof in relation to resolving the matter in dispute (Schneider, 2009).

3. Conciliation: In this process of alternative dispute resolution a third party is appointed with the free consent of both the parties in the dispute. This third party plays the role of a conciliator. If the parties to the dispute agree upon it then they are able to appoint separate conciliators for each of them and a common conciliator who shall play the role of connector among the parties in dispute (Belavkin and Guță, 2008).

The conciliator may be appointed on the basis of advisory, conciliation, and arbitration services (Acas) in relation to the dispute, which shall be provided to the parties concern. But without such advisory board conciliators may also be appointed with the prior consent of the parties of the dispute.

4. Arbitration: Here, in this process of alternative dispute resolution system, an arbitrator is appointed by the parties in dispute themselves. He plays a major role in the dismissal of the dispute in concern. An arbitrator is like a connecting bridge among the parties from two different sides. The arbitrator establishes the connection to resolve the matter in dispute by way of consented negotiation from both the parties, in this way by giving a certain things, are able to earn a lot more better things (Reed, Paulsson and Blackaby, 2004).

5. Medola: If the parties to the matter in dispute has not came to any conclusive decision regarding resolving the dispute, by a mediator, then the mediator may ask for the parties various possible negotiating points to resolve the matter in dispute.
 

Advantages of alternative dispute resolution (ADR):

1. In a alternative dispute resolution both the parties to the dispute are constrained in a same table of conversation by which they will be able to resolve their disputes without hampering their past relations.

2. The alternative dispute resolution system provides very fast remedy in comparison to the ancient or traditional court proceedings (Hodges, Benöhr and Creutzfeldt-Banda, 2012).

3. In a process under alternative dispute resolution there is no as such scope for any kind of needless expenses to be meet by the concern parties, it provides remedy in a cheaper expenditure in comparison to the traditional court expenses.

4. Here, both the parties are coming into a mutual understanding as to resolving the dispute with their free consent and their will to solve the problem as well. In this process parties does not possess any apprehension regarding the factors like winning or losing the proceedings, which is usually happens in the judicial system.

5. During a judicial procedure, the concern litigants in quite a few time suffers from inferiority, even the legal representatives are also feel inferior in certain stages of the trial, which not noticeable in procedure of alternative dispute resolution.

6. The main advantage regarding the alternative dispute resolution is that, in this process final and conclusive decision as to the justice is provided in a very good speed in comparison to the judicial proceedings.

7. In the system of alternative dispute resolution, confidentiality is preserved in a primary base and neither of the facts relating to the dispute is disclosed without the consent of the parties as to the public in general.

8. Flexibility is a great advantage as to the procedures under the alternative dispute resolution system; there is no scope of rigidity in the concept of alternative dispute resolution as to to resolving the matters in dispute.

9. The burdens upon the courts are only can be reduced by way of the alternative dispute resolution system and it also enhances the possibilities regarding future aspects as well.

10. In spite of being some dissimilarities with the court proceedings the final and conclusive decision taken during the procedure of alternative dispute resolution, has the binding force just like a decree given by a court of competent jurisdiction (Steffek and Unberath, 2013).
 

Disadvantages of alternative dispute resolution:

1. The decision taken in the process of the alternative dispute resolution is the initiation of the parties and it has legal enforceability but not as much as the judgement of the a court of competent jurisdiction.

2. In the process of alternative dispute resolution system there is a good amount of possibility in respect of ignorance of the statutory provisions regarding the matter in dispute.

3. If the decision is not followed by either of the party then the other party to the dispute has to approach the court of law with competent jurisdiction.

4. If neither of the parties agrees to the process of alternative dispute resolution then it cannot be started, which shall restrict the chances of resolving the matter in dispute.

5. In certain cases, depending upon the matter the cost of the procedure of alternative dispute resolution becomes very much high as the arbitrator charges a good amount in respect to the matter in dispute (Shah and Menski, 2006).

Conclusion:

After the discussion it can be summed up that alternative dispute resolution is the most important factor in relation to diminishing the burdens from the shoulders of the courts of competent jurisdiction. In present society it has become an absolute procedure in resolving the matters in dispute within a shorter period of time but due the lack of initiation of the parties it may become quite difficult and ambiguous in certain cases.

Precedents in European Union Laws:

Introduction:

One of the main sources of law is precedents; the other foremost source is legislation. When there is any conflict between two or more statutes regarding any fact in issue or if the concern statute is silent upon any particular fact in issue then the court of competent jurisdiction shall have the power to intervene as to proper interpretation of the provision of the statute. The court by taking into consideration the main object and purpose of the statute interprets the conflicting provisions. The court mentions its observation at the time of giving the judgment; this observation enforces some changes into the statutory provisions. Judges can interpret the provision regarding the ambiguity. But judges cannot make any interpretation in suo moto manner, they are empowered to do so whenever any matter in dispute comes before the court and which includes such a conflict or ambiguity regarding the matter in issue, and the conflicting provisions of the concern statutes. After doing necessary interpretations those interpretations becomes a law and shall have the binding enforceability of law as well. The court of competent jurisdiction is also has the power to nullify any provision of any statute in issue (Parpworth and Pollard, 2006).

From the earlier period precedential laws are considered with the great significance. There are several grounds of the applicability of precedential law into the union laws. The major benefits depending upon which the union laws adapts the procedure of precedential law are discussed under the following;

In relation to the standards of judicial instance to demeanor its procedure, it is indispensable to be competent to make a decision about the smudge of legal phenomena. Throughout the course of transmission of a judgment, the judge used to place out their justification for accomplishment of a conclusion. The cause that is required for them to appear at their termination quantity to the particulars concerning the ratio decidendi of the case. The ratio decidendi figures the lawful code which is a obligatory precedent sense it have to be followed in the upcoming cases consisting the similar substance facts. It is significant to divide the ratio decidendi as of the obiter dicta (Bryson, Dauchy and Mirow, 2006).

In the Donoghue v Stevenson[1932] case, the House of Lords observed that, a maker allocated a duty of concern to the crucial customer of the manufactured goods. This laid down a obligatory precedent which was pursued in the case of Grant v Australian Knitting Mills [1936]. Also in the case of Shaw v DPP [1962], the House of Lords observed that a criminal conspiracy to fraudulent community ethics existed. This was pursued in the case of Knuller v DPP[1973] too.   

 

Union laws are mainly based upon the customary laws and in the legal surroundings of UK, customary laws plays the most important role. Statutory laws are interpreted by the adjudicators and that is the main reason of the fact that in this decisions or laws, margin of errors are very less. So, consequently it is quite easy to adapt with an overview of having definite and precise legal provisions. The legal phenomenon in the United Kingdom were depended mostly on judge-made laws, these laws established by way of decisions taken by judges crucial to decide the cases placed in front of them – is known as "common law" or case-laws, till around the seventeenth century. Each and every jurisdiction of the nation established its own kind of common laws, here Scotland in particular discrete from the others (Nikolic, 2009). From that time, fresh laws and law alteration have ever more been introduced about by Acts of Parliament, generally enthused by guiding principles of the Government of the day. Nonetheless, the improvement of case-laws still leftovers a vital resource of law. A declaration of law prepared by a judge while deciding a case be able to become obligatory on later adjudicators and may by this way turn out to be the law for everyone must follow. Whether or not a particular announcement, in principle known as a precedent, by a adjudicator sitting in court of law whilst deciding a matter in dispute does turn out to be binding, in accordance to the principle of "stare decisis" - set by what has formerly been determined, on later juries depends upon two major factors:  

The assertion must have created the ratio decidendi of the matter in dispute; this is a Latin concept for the way of thinking at the back of the decision. The analysis has to be a subject matter pertaining to the law to a certain extent than a factual decision. In adding together, the assertion should not be obiter dictum - a little said moreover about the law or the particulars of the matter in dispute which is "by the way", in other language, not austerely compulsory for the legal base for the conclusion. Merely the ratio decidendi will be obligatory. It will consist of the legal doctrines and regulations which are essential to resolve the predicament in front of the court. Obiter dicta are not obligatory, but it could be considered as of "persuasive authority" - later adjudicators are at liberty to follow them and be prejudiced by them, but they are not appreciative to go after these parts of legal pronouncements (Dauchy, Bryson and Mirow, 2010).

Ratio decidendi signifies the promptness of the legal provisions taken by the court of law. It describes the capability of the sentence pronounced by the judge and these laws are quite decisive in relation to future cases with similar kind. It can be followed by any kind of legal concept in relation to the similar kind of cases within the same legal territory. Union laws mainly focus on the decisive and definite provision without any ambiguity that are quite available in the precedential laws as the ambiguity level is eliminated by the judiciary (Knowles, and Thomas, 2012).

In the common law legal systems, a precedent or last word is a theory or regulation recognized in a preceding legal case that be also binding on or convincing for a court of competent jurisdiction or supplementary tribunal when come to a decision in the subsequent cases with comparable subjects or facts (Rosati, 2012). The Common law legal systems put a great significance on deciding matters in dispute in accordance to the consistent ethical rules consequently analogous particulars will yield alike and unsurprising outcomes, and adherence of precedent is the apparatus by which that objective is reached. In Law Dictionary of Black it is defined that "precedent" as a "regulation of law recognized for the initial time by a court of competent jurisdiction for a meticulous kind of matters in dispute and after that suggested to in make a decision in the comparable cases." The Common law precedent system is a third type of law, on equivalent grip with statutory laws, statutes and codes established by legislative authorities, and regulatory law, where set of laws are propagated by decision-making branch agencies (Edwards, 2009).

The doctrine of Stare decisis is very much applicable upon the concept of precedents or judge made laws, it is an Anglo-Latin term, and it is a legal theory by which adjudicators are at a duty to admire the precedent recognized by previous verdicts (Chan, 2002). The expressions instigated from the phraseology of the theory in the Latin aphorism Stare decisis et non quieta movere, it signifies that "to situate by verdicts and not to disturb the undisturbed."  In the legal framework, this is implicated to denote that courts of competent jurisdiction be supposed to generally put up with the precedent and not to disturb the settled matters (Borden, 2014).

Conclusion:

After the above discussion it can be summed up that precedent is one of the most important sources of law in all time circumstances. Legislatures frames the laws but it is rectified and properly implemented by the judicial system, by virtue of that new laws are created or existing laws are executed in a newly framed direction. Judge made laws are legally enforceable as much as the statutory provisions.

 

References

Ali, S. (2013). Consumer Financial Dispute Resolution in a Comparative Context. Cambridge: Cambridge University Press.

Belavkin, V. and Guță, M. (2008). Quantum stochastics and information. Singapore: World Scientific Pub. Co.

Borden, G. (2014). Process. Hoboken: Taylor and Francis.

Brenninkmeijer, A., Jagtenberg, R. and De Roo, A. (2006). Effective Resolution of Collective Labour Disputes. Groningen: Europa Law Pub.

Cammaerts, B., Mattoni, A. and McCurdy, P. (2013). Mediation and protest movements. Bristol, UK: Intellect.

Chan, A. (2002). Thesis 2002. [Newton, Mass.: Mount Ida College, Chamberlayne School of Design.

Chern, C. (2011). Chern on Dispute Boards. Hoboken: John Wiley & Sons.

Edwards, J. (2009). The Hebrew Gospel and the development of the synoptic tradition. Grand Rapids, Mich.: William B. Eerdmans Pub. Co.

Gelston, A. (2008). The Psalms in Christian worship. Norwich, UK: Hymns Ancient and Modern.

Godfrey, B. and Dunstall, G. (2005). Crime and empire, 1840-1940. Cullompton, Devon, UK: Willan Pub.

Hodges, C., Benöhr, I. and Creutzfeldt-Banda, N. (2012). Consumer ADR in Europe. London: Bloomsbury Publishing.

Hoffman, D. (2011). The impact of the UK Human Rights Act on private law. Cambridge, UK: Cambridge University Press.

Hoffman, D. (2011). The Impact of the UK Human Rights Act on Private Law. Cambridge: Cambridge University Press.

Nielsen, J. and Christoffersen, L. (2009). Sharia as discourse. Farnham, Surrey [UK]: Ashgate.

Reed, L., Paulsson, J. and Blackaby, N. (2004). Guide to ICSID arbitration. The Hague: Kluwer Law International.

Rosati, E. (2012). Judge-made EU copyright harmonisation. Florence: European University Institute.

Schneider, C. (2009). Conflict, negotiation and European Union enlargement. Cambridge, UK: Cambridge University Press.

Shah, P. and Menski, W. (2006). Migration, diasporas and legal systems in Europe. London: Routledge-Cavendish.

Smartt, U. (2014). Optimize Public Law. Hoboken: Taylor and Francis.

Steffek, F. and Unberath, H. (2013). Regulating Dispute Resolution. Oxford: Hart Publishing Limited.

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