adr project final.docx

8/20/2019 ADR Project final.docx

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DECLARATION

The text reported in the project is the outcome of own efforts and no part of this project

assignment has been copied in any unauthorized manner and no part of it has been incorporated

without due acknowledgement.

R ISHABH AMBER $UPTA [2011%B#B#A LL#B% 0 !

S%(

ANJULI MARWAH [2011%B#B#A LL#B%00'!

S%(

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R ESEARCH METHODOLO$Y

R ESEARCH )UESTION

1. What are the types of hybrid !" models in the legal system#$. What is the major difference between arb-med and med-arb models of hybrid !"#

SCOPE & LIMITATION

The scope of this paper extends to merican% &ritish and 'ndian law.

HYPOTHESIS

This paper aims at the (uestion of different types of hybrid !" models and also critically

analyzes the contrast between arb-med and med-arb.

OBJECTIVES

This paper attempts to car)e out a clear picture of types of hybrid !" models and its contrasts.

This paper aims to critically analyze the laws and concepts of hybrid models of !". This paper

analyzes the outcomes of )arious hybrid !" models.

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TABLE OF CONTENTS

!eclaration.......................................................................................................................................1

" *+*",- *T-/!/0/2..............................................................................................................$

Table of ,ontents.............................................................................................................................3

'ntroduction......................................................................................................................................4

5arieties of ixed or -ybrid Processes..........................................................................................6

'. ed7rb...............................................................................................................................6

''. rb7ed............................................................................................................................6

'''. ediation Windowing.......................................................................................................8

'5. 'ncenti)e rbitration.........................................................................................................8

5. initrial............................................................................................................................8

,ontrasting the two hybrid procedures............................................................................................9

. Procedural reference of parties......................................................................................9

&. What are the implications of these processes for procedural preference among the two

hybrid procedures#...................................................................................................................:

,. -ow hybrid procedures affect disputant expectations and beha)iors.........................1;

!. &eha)iors !uring the ediation Phase.......................................................................1$

*. 'mmediate and long7term outcomes............................................................................16


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INTRODUCTION

ediation% arbitration and non binding e)aluation are basic !" forms. *ach of the >basic

three? has characteristic strengths and weaknesses. The idea behind ha)ing a mixed or hybrid

and multimodal dispute resolution process is that this model pro)ides the best of attributes of

each and to tailor dispute resolution more precisely to the uni(ue situation presented. 1

There are )arieties of hybrid models of alternate dispute resolution )iz. arb-med % med-arb%

mediation windowing% minitrial and incenti)e arbitration. This paper attempts to discuss the two

major hybrid models which are arb-med and med-arb. This paper attempts to compare the two

major hybrid processes which are med-arb and arb-med % following a temporal se(uence.

The parties desire to maintain control o)er both the dispute resolution process and its outcomes.

This desire of the parties affects disputants@ procedural preferences and their resulting procedural

choice% if any choice is a)ailable.$ There are se)eral conse(uences of using a particular hybrid

procedure for disputant expectations and beha)iors% as well as immediate and long7term

outcomes from using the procedure.3

1 rnold% A.% B ,arne)ale% P. A. 1::=% Preferences for dispute resolution procedures as a function

of intentionality% conse(uences% expected future interaction% and power. Aournal of pplied +ocial

Psychology% $=C 3=173:9

$ &urgess% P. 0.% B arburger% !. ". 1::3% !o negotiated and arbitrated salaries differ under

final7offer arbitration# 'ndustrial and 0abor "elations "e)iew% 48C 649766:

3 ,obbledick% . 1::$. rb7edC n alternati)e approach to expediting settlement. Working

paper% -ar)ard Program on Degotiation% -ar)ard Eni)ersity% &oston.

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VARIETIES OF MI*ED OR HYBRID PROCESSES

I# MED-ARB

ed7rb begins with mediation% but the disputants agree beforehand that% if full settlement does

not result% it will be followed by arbitration.4 !isputants ha)e at least two important reasons for

selecting med7arbC +ome want the ad)antages of mediation and the certainty of adjudication%

whereas others belie)e the specter of arbitration acts as an incenti)e to push disputants to be

more accommodating to one another.6 ed7arb includes a number of important sub7)arieties. 'n

med-arb-same% the arbitrator and mediator are the same person% whereas in med-arb-different % the

roles are ser)ed by different people.8 'n co-med-arb% the mediator and arbitrator are different

people but both attend the mediation so that time can be sa)ed by presenting e)idence only once.

/pt7out med7arb is a )ariation in which med7arb7same is initially specified% but% upon the

election of either disputant% the process changes into med7arb7different.=


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V# MINITRIAL

initrial is basically an incarnation of a non binding e)aluation process. There is also a hybrid

)ersion% which does not feature an e)aluation by the neutral.1$ minitrial is an abbre)iated

)ersion of a litigated dispute% attended by the disputants or their officers or directors who ha)e

the authority to settle.13 Typically% a neutral third party is present to moderate the proceeding.

summary )ersion of the e)idence is presented so that the representati)es themsel)es can get a

sense of the strengths and weaknesses of their respecti)e cases.14

1$


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CONTRASTIN$ THE TWO HYBRID PROCEDURES

To compare the two major hybrid processes which are med-arb and arb-med % a temporal

se(uence has to be followed. The parties desire to maintain control o)er both the dispute

resolution process and its outcomes. This desire of the parties affects disputants@ procedural

preferences and their resulting procedural choice% if any choice is a)ailable. There are se)eral

conse(uences of using a particular hybrid procedure for disputant expectations and beha)iors% as

well as immediate and long7term outcomes from using the procedure.

A# PROCEDURAL REFERENCE OF PARTIES

When parties are offered a choice of hybrid procedures% the important (uestion which crops up is

the preference for med-arb or arb-med .16 The (uestion for preference is of utmost importance

precisely for three reasons. Firstly% if they do not prefer a particular procedure% the parties may

a)oid using it% which may ha)e implications for dispute resolution system functioning Fe.g.% staff

and resources may be in)ested in procedures that few disputants want or useG. 18 Secondly% the

parties may beha)e differently when using a procedure they do not fa)or relati)e to one they

prefer% affecting both processes Fe.g.% the amount of information re)ealedG and outcomes

Fwhether a )oluntary settlement is reachedG.1= Thirdly% the parties@ preferences may be related to

justice beliefs% which% in turn% may affect compliance rates with imposed decisionsL disputants

16 +ander%


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may be less likely to comply with decisions that were reached using seemingly unfair

procedures.19

The disputants are primarily moti)ated by self7interest in cases of >interest7based disputes?. The

conse(uences of this self7interest moti)e for procedural preference are numerous and

multifaceted.1:


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e)idence will be most compelling to the third party. To reduce such uncertainty% each party may

exaggerate its demands and reduce its le)el of concession making a phenomenon known as the

chilling effect% hoping that the arbitrator will Jsplit the differenceJ and gi)e them a modestly

fa)orable settlement.$4 The parties also may employ impression management techni(ues

designed to con)ince the third party of the )irtue of their respecti)e positions. $6

B# WHAT ARE THE IMPLICATIONS OF THESE PROCESSES FOR PROCEDURAL PREFERENCE

AMON$ THE TWO HYBRID PROCEDURES+

With med-arb the parties retain decision control during the mediation phase. The parties exercise

process control by engaging in impression management during mediationL they also exercise

process control by presenting additional e)idence and formal arguments during any subse(uent

ad)ersarial type of arbitration hearing.$8 't is only at the end of the process that they relin(uish

decision control. Thus% with med-arb the parties retain process and decision control longer and

ha)e greater opportunity to reduce the uncertainty associated with recei)ing an arbitrator@s

binding decision.$= 'n contrast% with arb-med the parties ha)e only one chance to influence the

third7party@s binding decision7at the initial arbitration hearing.$9 Thus% although the parties

technically retain decision and process control throughout the subse(uent mediation phase% they

$4 'd

$6 0e)inger% .% B "ubin% A. M. 1::4. &ridges and barriers to a more general theory of conflict.

Degotiation Aournal% 1;C $;17$16.

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must also recognize that a binding decision has been rendered already only not yet Jser)edJ and

that any further impression management attempts will be ineffectual.$: The early forfeiture of

decision control% thus% is salient throughout the mediation phase of arb-med .3;


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agreement will not occur unless one side changes its resistance point.34 The arb-med procedure is

more likely to change the resistance points of the disputants% leading to a greater probability that

an o)erlapping zone of agreement will exist.36 These characteristics make arb-med a less

preferred procedure7the prominence of the JthreatJ of an arbitration ruling during the mediation

phase% the reduced opportunity for outcome control through impression management% and so on7

also work to lower disputants@ outcome expectations.38 0ower outcome expectations should lead

to an increased likelihood of a positi)e zone of agreement and% thus% should produce more

cooperati)e beha)ior by the disputants.3= +econd% there is e)idence that disputants in arbitration

settings o)erestimate their probability of success and the med-arb procedure does little to address

this o)erconfidence.39 'n fact% med-arb may heighten o)erconfidence% because disputants who do

not settle in mediation can continue to direct impression management attempts toward the third

party during arbitration and thereby continue to bolster their false estimate of pre)ailing in

arbitration.3: 'n contrast% arb-med may cause disputants to acti)ely consider the possibility of

losingC because a ruling already has been rendered% the disputant must entertain the possibility

that the ruling has been unfa)orable.4; !isputants may estimate the probability of an unfa)orable

ruling and then adjust it during mediation% whene)er the mediator offers positi)e or negati)e

34 'd

36 +ee supra note $=

38 +ee supra note 3

3= "ose% A. &.% B anuel% ,. 1::8% ttitudes toward collecti)e bargaining and compulsory

arbitration. Aournal of ,ollecti)e Degotiations in the Public +ector% $6C $9=731;

39 'd

3: ,obbledick% . 1::$. rb7edC n alternati)e approach to expediting settlement. Working

paper% -ar)ard Program on Degotiation% -ar)ard Eni)ersity% &oston.

4; 'd

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would ha)e a larger numbers of parties connect in cooperati)e beha)ior when arbitrators@

decision is uncertain.

Conclusion 1: In the mediation phase, parties will act in a more harmonious manner in

arb-med model than in med-arb model.

D ISCLOSING INFORMATION

major part of harmonious beha)ior is disclosure of information. The disclosure of more

information is results in a higher probability of arri)ing at an integrati)e% high7(uality

cooperation. 'nformation dissemination occurs mostly during pri)ate discussions with a

mediator. 2et% parties may be unwilling to di)ulge information if they dread that the other side

may use that information when making an ensuing arbitration ruling43. This probable loss of

outcome control through re)ealing information in mediation is an intrinsic problem in the med7

arb model.


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reconcile and make them more interested to mediation proposal. -owe)er% studies also reflect

that this certain benefit to settle% is the only factor that increase the probability of settlement and

parties need definite direction from their third party as well. 'f parties are incenti)ized to settle

their dispute through mediation% then% when the third party pro)ides express help by way of

recommended settlements% the parties are to be expected to make increased concessions to reach

toward that recommended settlement le)el. The result of this process is the increased chances of

concord between the parties. +ince mediators regularly and fre(uently suggest settlements% this is

not a uni(ue and rare beha)ior.

Conclusion !: "arties will respond to mediator#s recommendation for settlement with

more discounts in arb-med model than in med-arb model.

Conclusion $: "arties will abide by mediator#s proposals more re%ularly in arb-med

model than in med-arb model.

E# SHORT AND LON$-TERM RESULTS

't is pertinent to discuss both types of conclusion since it is (uite possible that one hybrid model

may instigate instantaneous outcomes% but% if the contesting parties want that dispute should

settle% then that may ha)e long7term results% such as being committed to stand for by the

agreement44. rb7med usually ha)e a higher number of relati)e ad)antages with respect to short

term results and med7arb is more beneficial for the long7term outcomes.

I MMEDIATE OUTCOMES & S ETTLEMENT FREQUENCY

/ne of the objecti)es of dispute resolution mechanisms is to gi)e more boost to )oluntary and

relati)ely (uick settlements. This implies that a settlement during the mediation phase% where the

parties ha)e control in decision outcome% is more preferable to an award in the arbitration% since

the parties ha)e willfully agreed to the settlement and because obligation under arbitration tends

44 Kressel% K.% B Pruitt% !. . 1:9:% ,onclusionC research perspecti)e on the mediation of

social conflict. 'n K. Kressel B !. . Pruitt F*ds.G% ediation researchC 3:47436. +an


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to increase. rb7med will bring into being a more settlements during the mediation phase than

those in med7arb. 't has been noted by many scholars that in arbitration% the parties who had

already arri)ed at negotiations ga)e sealed final7offer bids to the arbitrators deciding their subject

matter. -owe)er% before getting the arbitrator@s award% the parties (uite often manifested a

plethora of negotiation acti)ity% as their aim is to shun an arbitrated settlement46. The regularity

of settlements that happens post arbitration proceedings but before to the decision suggests that

the curtailment of the arbitration and the decision making phase as is found in)ariably in the arb7

med procedure would lubricate the progress of )oluntary settlements. lso% if the parties ha)e

lower fa)orable outcome probability with arb7med% they will be further encouraged to a)oid

arbitration.

Conclusion &: There will be %reater number of mediated resolutions usin% arb-med

model than by usin% med-arb model.

QUALITY OF DISPUTE RESOLUTION

The rele)ance or significance of settlements arri)ed at in the mediation phase is increased in arb7

med model than in med7arb model. This statement flows from the conclusion that disputants

di)ulge more classified information in the mediation phase of arb7med. The certainty and

re)elation of information is attached with a higher probability of reaching at an integrati)e and

high7(uality settlement. 'ntegrati)e settlements gi)es a higher o)erall benefit than do non

integrati)e settlements% whether (uality is elucidated in terms of joint pay7offs or Pareto

efficiency or creati)ity48. 'f the parties contribute more information and are more interested in

reaching the solution% then the chances of arri)ing at a high7(uality mediated settlement is

increased manifold with the arb7med procedure.

46 &urgess% P. 0.% B arburger% !. ". 1::3% !o negotiated and arbitrated salaries differ under

final7offer arbitration# 'ndustrial and 0abor "elations "e)iew% 48C 649766:

48 Tripp% T.% B +ondak% -. 1::$. n e)aluation of dependent )ariables in experimental

negotiation studiesC 'mpasse rates and Pareto efficiency. /rganizational &eha)ior and -uman

!ecision Processes% 61C $=37$:6.

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Conclusion ': Settlements arried at in the mediation more li(ely to be of superior

)uality in the arb-med model than in med-arb model.

TIME AND PRICE SIGNIFICANCE

Whereas there are few conclusions that fa)ors the no)el arb7med procedure% most of the other

conclusions reached at in this study till now strengthen the better7known med7arb procedure.


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partiesI confidence of such control will be much higher in med7arb. The fa)orable treatment

meted out by disputants before the third party also may sway their procedural justice choices.

The parties may consider that a mediator@s re(uest for a relaxation during the mediation phase of

arb7med model as more suppressing and intimidating than the similar demand in the mediation

phase of med7arb model. 'n the arb7med model the parties may opine it as a warning of what will

come if no settlement is arri)ed. This may lead disputants to feel that they were treated with less

re)erence and empathy in the arb7med procedure. Dotions of empathetic treatment and re)erence

play a pi)otal role in the interactional justice and in the )arious procedural justice model.

!istributi)e righteousness in outcomes are also expected to be higher in med7arb. With respect to

outcomes arri)ed in mediation% parties in arb7med may feel )ery burdensome to consent for the

reason that crisp recommendations made by the third party% magnified by the threat of the

arbitrated conclusion that already exists but is not yet disclosed. Parties may look any mediated

agreement arri)ed at in arb7med as Jpressurized%J upon losing the control o)er the resultL this

infringes justice criterion of partiality repression.49 +ince the outcome is ascertained prior to

mediation% it is not responsi)e to concessions% procedural de)elopments% or relationship amends

between the parties that may ha)e occurred during the course of the mediation phase. This might

result in parties to think that the arb7med model relies on less precise information Fsince the

arbitrator makes his or her decision without the assistance of new informationG or maybe it is a

procedure that )iolates existing benchmarks of ethics. &oth precision and ethics are major

fairness7enhancing tools. Thus% to the extent that arb7med )iolates the normati)e prospect of

what an ideal procedure should be% parties would consider med7arb model as more fair in terms

of its procedure and distributi)e justice.

ADHERENCE TO THE SETTLEMENT OUTCOME


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mediation% )ersus only 49 percent for adjudication in small claims court.4: 'n the labor7

management domain% non7adherence may take the form of attempting to arri)e contract

alterations )ia the accusation machinery.


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CONCLUSION

The strength of arb7med model lies primarily in its inherent moti)ational capacity. 't appears to

be intimidating and lessening each party@s decision control% the procedure would subordinate

partiesI interest and produce uncertainty among them. These complex analysis should encourage

the parties to maintain decision control and prefer med7arb model o)er arb7med model.

'n the nut7shell% we can say that the biggest ad)antage of arb7med procedure is that it moti)ates

parties to reconcile their differences among themsel)es% whereas the greatest ad)antage of the

med7arb procedure is amplified confidence and satisfaction of e(uitable treatment and greater

adherence with the arbitral decisions which is a more long7term effect. This explanation of

relati)e strengths described as abo)e strongly ad)ocates that policy designers andQor parties

should pursue a dynamic and rational approach to select a dispute resolution procedure% on the

basis of specific criteria% they aim to maximize.

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