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Alternative Dispute Resolution Mechanisms

Reyte on Publishing 2009

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Common Complaints

Mediation works well when there is willingness between parties to work out the

conflicting issues and they are open to the other party’s views. Also this type of

complaint is reserved for issues requiring a quick resolution and the participants want to

manage the results of the decisions made.

Non binding arbitration works well in cases that are of moderate complexity. Often used

in Business to Business (B2B) or Business to Consumer (B2C) type conflicts requiring a

third party to assist in evaluating the terms of the issue.

Services Offered by the American Arbitration Association (AAA)

There are three dispute resolution guides employed by AAA to settle issues between

parties.

Having a predefined process for handling conflict allows the settlement of disputes to

occur equitably and quickly. This aids the business process within the organization and

improves the efficiency of the organization with timely resolution. This also allows for

management to maintain order and preserve business relationships with customers,

suppliers and vendors (ADR.org, 2009).

The AAA basic processes for handling non binding disputes

The first is Mediation

The Mediation process calls for communication between the disputing parties that is

facilitated by a neutral party that has the purpose of persuading each party to understand

and listen to the others viewpoint (ADR.org, 2009). The facilitator’s role is simply to

provide norms to allow communication to flow freely with the purpose of having the
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parties settle the issue among themselves. This allows a non-threatening and amicable

environment for each party to share their concerns and have questions or points of

contention discussed (ADR.org, 2009).

The Non binding arbitration process allows the parties involved to separate the details of

the issues of a case and discuss them with a third party who will listen to both sides. The

arbitrator is a third party called in to hear both sides and evaluate the details and provide

an advisement. The advisement is simply an independent assessment that is non binding.

The hearing between parties presided by the Arbitrator allows each side to present their

arguments without interference from the other party. The facts are presented and then the

Arbitrator makes a decision based on the information that is a non binding position.

There is a trained team of arbitrators provided by AAA that work in the non binding

dispute resolution process. Some of the arbitrators come from very experienced

backgrounds in law, finance, and other industries (ADR.org, 2009).

Contract Clause for Non Binding Arbitration

Another procedure used by AAA in conflict resolution is the Contract Clause for non

binding arbitration. The clause provides a template guide to assist organizations that wish

to resolve their dispute with the aid of a contract as the arbitrator instead of an actual

person.

Example of AAA Case

Former President Carter signed the Amateur Sports Act (ASA) after that time AAA is the

organization to resolve cases involving sports of a professional or amateur nature. One

such sports area are the U.S. Olympics teams disputes that involve athletes who have

allegedly used drugs or other performance enhancing drugs. The conflict being the right
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to participate in the Olympics or other sports after such an allegation (Zuckerman &

Hauptly, 2008).

International Court of Arbitration (ICC)

The ICC is an international arbitration reconciliation program designed to assist dispute

resolution among business, or commercial contract conflict. The first premise of ICC is

that there must be a decision by the parties to mutually accept the terms of ICC

arbitration.

There is a clause that is given by ICC that is advocated to participants in the arbitration

process for inclusion within the contract (ICCWBO.org, 2009). This clause basically

requests that both parties submit to the resolution or decision of ICC arbitration ruling

decisions by the International Chamber of Commerce and the arbitrators (ICCWBO.org,

2009).

The ICC includes global arbitrator professionals from around the globe that are trained in

settling disputes pertaining to their individual country’s business or commercial practices.

All of the arbitrators are part of the International Chamber of Commerce empowered by

an international Court of Arbitration.

Participants are expected to comply with the rules presented by the ICC arbitrator. There

are various components to the rules, which exists in several languages:

ICC Arbitration Rules (English)

First requirement is to consider the ICC Clause above. Followed by the highly

bureaucratic requirements for applying for a request to arbitration. There is counter-

complaint format; Time limits set for the proceedings and communications between

parties. Formal request for appointing arbitrators and approval of arbitrators. Detailed
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procedures in presenting disputes and laws governing disputes. Once the resolution has

been determined there are provisions for a rebuttal or challenge to the decision and

formalized steps in resolving these residual disputes as well (ICCWBO.org, 2009).

ICC Appointing Authority Rules. Refers to either appointing the ICC Court to determine

the ruling or another party such as the ICC to decide the final ruling.

ICC Pre-arbitrage Referee Rules

Steps in to provide damage control to the assets of parties in the dispute. The Referee also

disburses any funds that are to be remitted to parties. Enforces a party to complete their

obligations to the other party. Protections regarding and evidence or required

investigations.

ICC ADR Rules

A more flexible and party participatory dispute resolution option. It is a less formalized

process with the parties meeting on more agreeable terms. They also have a part in how

the resolution is settled based on their individual requirements or needs. The parties have

more freedom in deciding the methods by which a settlement is reached. Be it monetary,

return of assets or some other method. If the conflict is still unresolved after completing

the ADR process, mediation will be the final option.

ICC Expertise

Expertise refers to the three main areas. Discounting and eliminating disparities in

understanding the operations involved in business between parties. The aim to provide

aid in reaching an amicable solution in the dispute. Also providing expertise related to

court or litigation procedures that may be necessary in the resolution process. There is a
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specific clause that is considered important in this component. It involves the opportunity

to waive charges for expert services if the tribunal gives the option.

ICC Docdex

The Docdex decision is another option in resolving disputes. The hope is to provide a

third party decision wholly based on the documents or contracts signed by the parties

before the dispute arose. This option is designed in resolving disputes quickly and

accurately without the delays of the other options due to rulings and procedures.

Information about the party is required in addition to the claims and the details of what

the dispute entails. All evidence and supporting information is requested by Docdex.

Experts are appointed to handle the Docdex dispute and the results are non binding.

ICC Dispute Boards

Dispute Boards are designed as change control procedures to manage the scope of the

dispute resolution process. The board consists of one to three persons that understand the

contract procedures involved. Most often used in contracts that are of a longer-term

nature. There are three basic types of boards.

The Dispute Review Board is for disputes that are fairly neutral and agreeable in

consenting to the terms of resolving the dispute.

The Dispute Adjudication Board

By contract agreement the parties decide to accept the decision which is binding. If there

is a conflict with the final decision, the only way out of the DAB is if the tribunal allows

the parties to withdraw from the resolution.

The last Dispute Board is the Combined Dispute Board

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A recommendation is given or a decision based on how parties respond to the reply of the

CDB. The rules dictate the parameters of how the dispute is settled. The decision could

be final or non binding.

The main difference between the ICC and AAA is that the AAA is an American

Arbitration Process that is designed for business or commerce disputes between the U.S.

and other parties. The ICC involves business or commerce disputes between countries

primarily. The ICC is highly bureaucratic in requirements and most likely has much more

time involved at resolving disputes. The AAA offers simple solutions that can provide

quick decisions to be made either by the process or the parties.

The ICC is a court appointed to judge contractual decisions. The Court has the

responsibility of managing and monitoring the arbitration case at all times. The court

does not settle the disputes however; they police the decisions made by assisting in

enforcing the decision as necessary. Generally the parties comply agreeable with the

final decisions made.

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References

ADR.org. (2009). American Arbitration Association. Retrieved August 20, 2009

from http://www.adr.org/si.asp?id=5688

ICCWBO.org (2009). International Court of Arbitration. Retrieved August 20,

2009 from http://www.iccwbo.org/court/arbitration/id4398/index.html

Zuckerman, S. & Hauptly, M. (2008). AAA Arbitration and Olympic Sports.

Retrieved August 20, 2009 from

http://www.allbusiness.com/sports-recreation/amateur-sports-olympics/11651059-

1.html