exam ques

Question 1

Explain why arbitration is a type of alternative dispute resolution even though it involves a third party making a decision based on law

Answer 1

Arbitration is a process of dispute resolution where an independent adjudicator makes a binding decision on the issues in contention based on the evidence presented by the parties.
In a practical sense, arbitration is quite similar to litigation - except that arbitrations are conducted outside of court.
Arbitration usually arises as a result of a dispute resolution clause in a contract. It can also arise where the parties voluntarily decide to go to arbitration (for example, to keep the matter private).
The arbitrator is chosen by agreement between the parties. If the parties are unable to agree on a specific arbitrator, they will often agree on an independent person or body to appoint the arbitrator.
Unlike mediation, arbitration has a more structured and formal process. For example, in arbitration:
there is a hearing, just like in a court case;
there can be a lengthy pre-trial process, involving pleadings, discovery and the preparation of written witness statements;
parties may be cross examined during the trial;
the arbitrator will usually issue a detailed written decision after the hearing.

Question 2

identify three different types of mediation, and what the differences between them are

Answer 2

Facilitative (problem solving)- both parties identify interests and priorities then attempt to reach a creative settlement.

Transformative (therapeutic)- focuses on the parties personal relationship in a therapeutic way. Main focus is on the party empowerment and recognition. Doesn’t always lead to settlement

Settlement- positioned based. Relies on negotiating in order to agree to a settlement

Question 3

Describe three types of ADR processes, explaining what happens in those processes.

Answer 3

Facilitative (e.g. mediation)
Advisory (e.g. conciliation)
Determinative (e.g. arbitration)

Question 4

Positional based negotiations have opportunities and risks. Identify three of each.

Answer 4

Pros- time, limits conflict, single case

Cons- winner-loser situation, focused on position, negative impact on relationship

Question 5

Describe three models of conflict. Discuss each one, identifying key features.

Answer 5

Stereotyping, ideology and perceived or actual competition over interests