Conflict Management

Solution Preview

---

My job as an Online Teaching Assistant is to help you to do your assignment and definitely not do them for you. In fact, if I did 'do' some or all of your assignment for you I could be in big trouble with BrainMass or even worse fired from BrainMass because it clearly states that we are NOT to do it. In fact BrainMass states "The student will quickly receive a detailed explanation from a qualified Online TA. Knowledge is valuable but only if it is untainted. The members of our community must have a common trait - they should all believe in fairness to the owners of original work and take the responsibility to do independent work. Online TAs help a great deal in limiting such morally-incorrect practices by informing students about plagiarism and how to cite and acknowledge others work correctly. The system is not intended to replace the many services already provided by professors and teaching assistants. It is intended to supplement the learning process by offering more timely and direct access to graduate-level assistance. The Online TA?s have all been through undergraduate studies and understand better than anyone else where, when and how students get stumped. The job of the OTA is NOT to write an essay for the student, but to provide ideas, definitions, research help, and instructions on how the student should approach the problem. ***I put this message on ALL of my responses so if this does not apply to you please do not take offense for the reminder for those who have forgotten or may not realize. ***

This look's like an interesting assignment, though, so let's see where I can be helpful

Question: Conflict Management Paper

I need some assistance writing my paper, to Compare and contrast alternative dispute resolution processes, including mediation, arbitration and negotiation; with two different companies. I am having problems trying to find companies to compare with this information. Please include references.

Scenario

- Employee # 1 feels he is being targeted because of his age (sandwich generation) and his need to help his elderly parents. He is leaving work, to assist them working over, he feels as long as the gets down, it doesn't matter how long he is out.

- Employee # 2 feels that new manager ignores the needs of the disabled or those with physical illness or problems with the exception of pregnancy.

- Employee # 3 feels the right to make and conditions of employment. By living a "At Will" state, not requiring reasons for layoffs or firings. Management feels they are within his rights in the performance of his job to release people from work.

Arbitration

International arbitration, like domestic arbitration, is a means by which a dispute can be definitively resolved, pursuant to the parties' voluntary agreement, by a disinterested, non-governmental decision-maker. Or, in the words of the U.S. Supreme Court, "an agreement to arbitrate before a specified tribunal [is], in effect, a specialized kind of forum-selection clause that posits not only the situs of suit but also the procedure to be used in resolving the dispute"(Scherk). "There are as many other definitions of arbitrations as there are commentators on the subject." (Redfern & Hunter)

Commercial arbitration has several defining characteristics. First, arbitration is consensual-the parties must agree to arbitrate their differences. Second, arbitrations are resolved by non-governmental decision-makers-arbitrators do not act as government agents, but are private persons selected by the parties. Third, arbitration produces a definitive and binding award, which is capable of enforcement through national courts.

Another defining characteristic of arbitration is its flexibility, which generally permits parties to agree upon the procedures that will govern the resolution of their dispute. As a consequence, the procedural conduct of arbitrations varies dramatically across industrial sectors, arbitral institutions, and categories of disputes. In particular fields, or individual cases, parties often agree upon procedural rules that are tailor-made for their individual needs.

A side from specialized fields, commercial arbitration often bears significant resemblances to commercial litigation: arbitration will usually involve the submission of written pleadings and legal argument, the presentation of written evidence and (usually) oral testimony, the application of "law" (in the form of judicial precedents and statutes), and the rendition of a binding award. Nevertheless, arbitral procedures are usually less formal than litigation, including on issues such as the amendment of pleadings, the admissibility of evidence, and the mode of presenting legal argument and factual material. Moreover, arbitration generally lacks various characteristics that are common in U.S. litigation, including broad pre-trial discovery, summary judgment procedures, and appellate review.

Arbitration agreements can, and should, address a number of potentially significant issues. "These include the situs of the arbitration, the arbitration rules, and the method of appointing the arbitrators and an appointing authority, as well as the number of arbitrators, the applicable law, and the language of the arbitration." (infra 44-45) A carefully-drafted arbitration agreement can address each of these and other issues, and provide the parties with a relatively efficient dispute resolution mechanism tailored to their particular needs. A poorly-drafted arbitration agreement plants the seeds for disputes over jurisdiction and procedure, and may be unenforceable.

Institutional arbitration rules and national law (including U.S. law) widely recognize the principle that arbitration agreements are "separable" from the underlying contract in which they appear. According to the reparability doc-trine, an arbitration clause is a district and independent agreement, supported by the separate consideration of the parties' exchange of promises to arbitrate. As a consequence, challenges to the existence, validity, or legality of the underlying agreement generally do not affect the validity of the arbitration agreement. The doctrine plays an important role in U.S. and other courts in limiting judicial interference in the arbitration process. Under U.S. and most other national laws, certain categories of disputes or claims are "non-arbitral" - not capable of settlement by arbitration (as opposed to by national courts). The categories of claims that are non-arbitral vary from country to country, but generally involve claims under statutory protections or concerning matters of public policy.

Mediation

To borrow a quote from Dr. Bernstein, ?There is only one good kind of legal dispute ? the one that is prevented.? I find it interesting how successfully a resolution can be reached through mediation. When writing a paper about mediation, it would only be logical to begin with the question, what is mediation? According to The Real Life Dictionary of Law, mediation is ?the attempt to settle a legal dispute through active participation of a third party (mediator) who works to find points of agreement and make those in conflict agree on a fair result.?

Mediation serves as a method of alternative dispute resolution (ADR). These alternatives are the options one has other than litigation. In ?The Satisfactions of Litigation,? Parselle argues litigation partly drives mediation, and is also partly the competition. He claims some people prefer litigation because it is ?adversarial.? The dispute becomes a competition where there will be a winner and a loser. Alternatively, mediation is a successful method of resolution because the legal system can be costly, painful, destructive, and inefficient. Instead of the strict win/lose scenario with litigation, mediation allows parties to reach a result that is acceptable to all involved. Mediation can be seen as an accessory to, not a substitute for the litigation process. In Federal courts, only 2% of filed cases end in trial. Comparatively, in California state courts, less than 4% of cases end in trial. Mediation is not entirely responsible for these small numbers, but it certainly has played a large role.

The article ?Five Mediation Rules to Remember? suggests the following ideas to keep in mind throughout the mediation process:

? Get involved with picking the mediator
? One side needs to walk away disappointed
? Be polite, be professional, and be calm
? Settle on a principled basis
? It's OK to say no

Negotiation

Negotiation is a basic generic human activity. The world is a giant negotiating table such that a person can negotiate many different things in many different situations. Negotiations can occur over labor relations, buying purchases, salaries, strikes, international affairs such as war and freeing hostages as well as family issues such as divorce, child custody and even who gets the car keys.

There are two common characteristics of a negotiation or bargaining situation. The first characteristic is that all negotiations have conflict inherently in them. Negotiating parties have separate but conflicting interests. For example, a car salesman wants to sell a car at the highest price possible. All while the buyer wants to pay as little as possible for the car. Also, an employee wants the most money he can get for a raise. The manager will want to give as little as possible in order to keep expenses down. The second common characteristic is that of reason. All negotiations will try to follow some rational procedure (Asherman, Ira and Asherman Sandra, 1990).

There are certain key aspects to negotiations. ...