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Legal System of Business - Essay Example

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An Alternative Dispute Resolution (ADR) clause is an alternate method of solving a problem without the need to resort to litigation or a lawsuit for resolution. The value in a well constructed ADR is associated with the relative easy and cost effective approach to a dispute resolution…
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Legal System of Business
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Legal System of Business-Alternative Dispute Resolution An Alternative Dispute Resolution (ADR) clause is an alternate method of solving a problem without the need to resort to litigation or a lawsuit for resolution. The value in a well constructed ADR is associated with the relative easy and cost effective approach to a dispute resolution. Resolution is typically arrived at quickly and is more discreet than alternate forms of decision making in a contentious environment. The disadvantage could be in the fact that most decisions are a product of compromise. That may work well in some scenarios, but in others, middle ground concessions might destroy the essence of the original intent of the agreement. The most common ADR methods are mediation and arbitration; however several other methods are available including: negotiations through facilitation; neutral evaluation; conciliation; summary jury trial; mini trial; neutral evaluation; judicial referee; and others (Goldberg, Green, & Sanders, 1985).
In this instance, preparing an ADR clause that can be used by the learning team to resolve potential disagreements among team members requires an agreement on a complete definition of an ADR clause. Perhaps the most consistent and concise definition of ADR identifies it as a "procedure for settling disputes by means other than litigation; e.g., by arbitration, mediation, or minitrials" (Law Encyclopedia, 1998). Additionally, it is important that the clause make both business and legal sense, and include components that will avoid significant procedural issues or needless parameters that restrict the resolution process.
In structuring the Alternative Dispute Resolution clause specific to this assignment, the goal was to be concise keeping needless complexity out of the resolution clause, including the necessary elements that demonstrate a clear understanding of the process to be used, but avoiding statements that may encourage disputes in its utilization (Aibel & Friedman, 1996). The following statement is the proposed Alternative Dispute Resolution clause developed by the learning team. If an unresolved dispute emerges out of any learning team activities, and internal negotiations fail to settle the controversy, all learning team members agree to use mediation through a neutral third party. The neutral third party will be the faculty member for the current course. Mediation will be conducted in the office of the faculty member and at a time the faculty member prescribes as convenient for him or her. If Mediation does not resolve the issue, arbitration becomes the last alternative. Arbitration will be through a panel of three faculty members in the department including the current faculty member as the chair. Learning team members agree to abide by the results of the arbitration without recourse. All learning team members agree initially to attempt to resolve any issues in good faith negotiation prior to commencement of a formal mediation request. Any costs associated with mediation or an arbitration process will be shared equality by all learning team members.
In conclusion, it is recognized that dispute resolution is not a desired tactic embraced without unavoidable cause. However, if the need for alternative resolution is ever required, it is advisable to have a clear statement and process that all have agreed upon prior to execution of the original agreement. That very fact mitigates some of the reasons that disputes arise initially, however, ADR is a valid tool to use if instances arise where resolution of a dispute would have a consequential effect on the terms and conditions of any agreement.
References
Aibel, Howard J. & George H. Friedman. (1996). "Drafting Dispute Resolution Clauses in Complex Business Transactions," 51:1 Dispute Resolution Journal 17 (1996).
Law Encyclopedia. (1998). West's Encyclopedia of American Law. Retrieved November 12, 2008 from http://www.gale.cengage.com/.
Goldberg, Stephen B., Eric D. Green, and Frank E. A. Sander. 1985. Dispute Resolution. Boston: Little, Brown. Read More
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