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Alternative Dispute Resolution > ALDR > Flashcards

ALDR Flashcards

1
Q

What is conflict?

A

Conflict is actual or perceived opposition of needs, values, and interests.

  • internal
  • external
  • can refer to wars, revolutions or other struggles, which may involve the use of force as in the term armed conflict
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2
Q

Sources of conflict

A
  • different attitudes, values, perceptions, opinions, and approaches
  • Misunderstandings and disagreement about needs, goals, priorities and interests
  • Personality conflicts
  • Scarcity of resources
  • Poor communication
  • Poor or Inadequate organizational structure
  • Lack of teamwork
  • Lack of clarity in roles and responsibilities
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3
Q

Types of Conflict/Dispute

A

a. Disputes of Right
- People are groups entitled by law, contracts
- usually settled by legal decision or arbitration and not by negotiation

b. Disputes of Interest
- Opinion
- Entitlement to resources or privileges
- usually solved through collective bargaining or negotiation

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4
Q

Effects of conflict

A
  • Low productivity
  • Low morale
  • Stress
  • Other negative outcomes
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5
Q

Turning Conflict into Opprtunity

A
  • can help see things from diverse perspectives
  • lead to innovative and creative solutions
  • challenges us to improve ourselves and our relationships with others
  • can lead to growth and learning
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6
Q

Conflict Management

A

The practice of recognizing and dealing with disputes in a rational, balanced, and effective way.

A theoretical concept focusing on limitation, mitigation, and/or containment of a conflict without necessarily solving it.

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7
Q

What are the objectives of conflict management?

A
  • to provide skills to resolve conflict for growth and learning
  • to assist individuals in preventing or resolving conflict before it escalates and becomes unhealthy
  • Each party has an important role to play in managing conflict.
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8
Q

Conflict Management Strategies

A
  1. Collaborate or negotiate
  2. Avoid
  3. Compete
  4. Compromise
  5. Accommodate
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9
Q

Explain the avoidance strategy

A

It seeks to put off conflict indefinitely.

  • by delaying or ignoring conflict, the avoider hopes the problem resolves itself without confrontation.
  • someone who uses avoidance has the ability to side step problems, leave issues unresolved, and allow others to take ownership
  • May be the correct strategy if the issue is unimportant.
  • Similar to a simmering pot that will eventually boil over :(
  • A person who avoids conflict has a low concern for herself and for others. In the two-dimensional space, they are uncooperative and unassertive.
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10
Q

Explain the accommodation strategy

A

It essentially entails giving the opposite side what it wants.

  • often occurs when one of the parties wishes to keep the peace or perceives the issue as minor
  • useful when you want to create goodwill or show reasonableness
  • When overused, can result in restricted influence, loss of contribution, overlooked ideas and anarchy
  • Can also result in low morale and lack of rapport among colleagues.
  • Skills of an accommodator are selflessness, obedience and an ability to yield.
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11
Q

Explain the competition strategy

A

It operates as a zero-sum game, in which one side wins and other loses.

  • Good in emergencies or other instances when quick decisions need to be made.
  • If overused - lack of feedback, low empowerment, reduced learning
  • If underused - indecision or delayed action could have a crippling effect on an organization
  • competitor is easy to recognize
  • Winning is the name of their game and they are only concerned of their own needs
  • High assertiveness and low cooperativeness
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12
Q

Explain the compromise strategy

A

Typically calls for both sides of a conflict to give up elements of their position in order to establish an acceptable, if not agreeable, solution.

  • Each side’s needs are only partially met
  • A compromiser demonstrates skills of moderation and negotiation.
  • If overused - loss of big picture perspective and lack of trust
  • If underused - there may be frequent power struggles and unnecessary confrontations

*Compromiser seeks ways to make a deal and meet halfway.

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13
Q

Explain the collaboration strategy

A

Integrating ideas set out by multiple people. The object is to find a creative solution acceptable to everyone.

  • Ideal alternative - high collaboration on assertiveness and cooperativeness
  • Collaborator demonstrates reasonableness and an ability to listen, understand and empathize.
  • If insufficient collaboration - lack of commitment, low empowerment and loss of innovation
  • When overused - too much time spent on trivial matters and extra work created
  • Takes time and energy to correctly execute
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14
Q

What is a state?

A

A community of persons permanently occupying a fixed territory, and possessed of an independent government organized for political ends to which the great body of inhabitants render habitual obedience.

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15
Q

Essential elements of a state?

A
  1. People - inhabitants
  2. Territory - fixed portion inhabited
    COMPONENTS: a. land mass (terrestrial domain) b. inland c. external waters (maritime and fluvial domain) d. aerial domain
  3. Government - agency or instrumentality through which the will of the State is formulated, expressed and realized
  4. Sovereignty - supreme and uncontrollable power inherent in a State by which that State is governed
    a. legal - authority which has the power to issue final commands
    b. political - power behind legal sovereign or sum of influences that operate upon it

a. internal - power to control domestic affairs
b. external - independence (power to direct relations)

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16
Q

What are the criteria for establishing a state?

A
  1. Permanent population
  2. Defined territory
  3. Government
  4. Capacity to enter into relations with other states
17
Q

Characteristics of a state?

A 
Ideal person
Invisible
Intangible
Immutable
Existing only in contemplation of law
18
Q

What is sovereignty?

A

Inherent, comprehensive, unlimited and absolute power of the state to govern within its territory and the freedom from external control of other states. It has two components, internal sovereignty in which the power to govern its territory. External sovereignty which is the freedom from external control. This is manifested by adhering to the 1987 Constitution that we must uphold the general principles of the international law.

19
Q

Sovereignty v. jurisdiction

A

S - right to territorial sea (exclusive right to exploit all the resources there)
J - right to treaty base (to enforrewwrrerererrere laws, fiscal, etc.)

Jurisdiction - authority to exercise legal powers
Sovereignty - supreme political and constitutional authority of a State to govern itself

20
Q

Characteristics of a sovereignty

A
  1. Permanent
  2. Exclusive
  3. Comprehensive
  4. Absolute
  5. Indivisible
  6. Inalienable
  7. Imprescriptible
21
Q

What is jurisdiction?

A

Jurisdiction is the practical authority granted to a legal body to administer justice, as defined by the kind of case, and the location of the issue. In federations like the United States, areas of jurisdiction apply to local, state, and federal levels.

22
Q

Rights and privileges of States

A

a. State Immunity (Art. 16, Sec. 3) - juridical equality of states
* States cannot be sued unless they waive this right
* enjoyed by both the head of state and by the state itself. Diplomatic agents, consuls

Standing to Bring Suit: Other States have standing
to bring a claim to the International Court of Justice
(ICJ) or other international judicial institution in
relation to a dispute concerning compliance with that
obligation [Art. 4, IDI Resolution].

  1. Jus Cogens
    Definition: A jus cogens norm is a “norm accepted and
    recognized by the international community of States
    as a whole as a norm from which no derogation is
    permitted and which can be modified only by a
    subsequent norm of general international law having
    the same character” [Art. 53, Vienna Convention on
    the Law of Treaties (hereinafter “VCLT”)].
    This is also known as a peremptory norm of general
    international law.
    Examples
    • The prohibition against the use of force under
    the UN Charter [Nicaragua Case (ICJ, 1986)];
    • Law on genocide;
    • Prohibition against apartheid;
    • Self-determination;
    • Crimes against humanity;
    • Prohibition against slavery and slave trade;
    • Piracy [BROWNLIE; MAGALLONA].
23
Q

Explain juridical equality of states

A

A state may not impose its authority or extend its jurisdiction to another state without the consent of the latter through a waiver of immunity

24
Q

Kinds of Immunity

A

Absolute Sovereign Immunity - where a state cannot be sued in a foreign court no matter what the act it is sued for

Restrictive Sovereign Immunity - where a state is immune from suits involving governmental actions (jure imperii), but not from those arising from commercial or non-governmental activity (jure gestionis).

25
Q

Two elements of consent

A 
a. OFFER
Ø definite – determined – prestation will
concur ; the object of the prestation
Ø Complete – ofer must have brought out
ALL aspects that will for the offeree ; just
accept or offer
b. ACCEPTANCE
Ø UNCONDITIONAL – if there is at least a
slight deviation to an offer, it is not
acceptance but creates a new tie -- a
COUNTER OFFER – counter proposal – no
juridical tie
Ø This would result to the consent
26
Q

What is consent

A

Meeting of minds.
Consent occurs when one person voluntarily agrees to the proposal or desires of another. It is a term of common speech, with specific definitions as used in such fields as the law, medicine, research, and sexual relationships. Consent as understood in specific contexts may differ from its everyday meaning.

27
Q

What is capacity

A

In short, both parties to a contract must have contractual capacity or competency in order for the agreement to be legally binding. Contractual capacity means that the parties are able to understand that a contract is being formed. Further, the parties must also be able to understand the basic nature of the contract.

28
Q

Article 33, Par. 1 of the UN Charter

A

Article 33
The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.

29
Q

Sources of International Law

A 
Treaty law
International customary law
General principles of law recognized by civilised nations
*Decisions of national and lower courts
*Scholarly writings
30
Q

ICJ’s Jurisdiction?

A

The International Court of Justice acts as a world court. The Court’s jurisdiction is twofold: it decides, in accordance with international law, disputes of a legal nature that are submitted to it by States (jurisdiction in contentious cases); and it gives advisory opinions on legal questions at the request of the organs of the United Nations, specialized agencies or one related organization authorized to make such a request (advisory jurisdiction).

31
Q

Two types of dispute resolution

A

Adjudicative Processes

  • legal process by which a judge or neutral person or arbitrator uses evidence set forth by opposing parties and decide and issue judgment on rights and obligations of parties involved
  • ex: litigation and arbitration

Consensual Processes

  • requires the agreement of the parties in the dispute resolution
  • ex: conciliation, negotiation, mediation
32
Q

Advantages of International Dispute Resolution

A
  1. Often quicker than going to trial
  2. High degree of satisfaction because partners have feasibility of choices
  3. Confidentiality - all the documents and proceedings are confidential, not subject to discovery, and witnesses may communicate in closed doors
33
Q

Disadvantages of International Dispute Resolution

A
  1. If the other party is in bad faith, it can reduce discovery of facts
  2. Possibility of expenses without resolution
  3. Weak structure - not suitable for all types of dispute (crime, grounds for legal separation, etc.)

Would the issue be a subject of alternative dispute resolution? What if the party enters into contract and it says there that liability shall be resolved through ALDR. Is the contract void though? Probably not so be careful. Does the third person have authority to settle the dispute?

Alternative Dispute Resolution (3 decks)

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