Arbitration and Mediation Associations in America - Essay Example

Arbitration is just like an ordinary court proceeding, except that it is not judicial in nature but administrative. In an arbitration proceeding, thecase is made known to a specific government agency that will provide administrative services to parties, the complainant and the respondent, before and during the arbitration. There are numerous arbitration and mediation agencies, some established or connected with the national government. These agencies are devoted to settle disputes between two conflicting parties without the need of going through judicial proceeding or litigation. Arbitration is the submission of a complainant to an intended respondent for a settlement of a dispute. The result of the settlement will be final, binding and executive in nature between the two parties. Mediation is done before arbitration or litigation. Through mediation, both parties are tried to reconcile with each other. Mediation is done through communication between parties to settle the dispute on their own by coming up with a solution agreeable to both parties. (Arbitration & Mediation, 2008) Arbitration and mediation, according to Newhall (2008), is more private in nature rather than a court proceeding. The importance to the confidentiality of the issue is also addressed more positively through the said methods. Moreover, through arbitration and mediation, a dispute can be settled faster as compared to going through court litigation, in which cases are scheduled to be settled many days, even months, after. There are numerous arbitration and mediation associations in America with each providing its own set of rules or policies. One arbitration and mediation agency in the US is the United States Arbitration and Mediation (USA&M). USA&M has a general guideline that once its services are sought, both parties are required to comply with the requirements of the said agency such as submitting documents for evidence, appearance during investigation, testify on the credibility of evidence gathered, and others. However, rules and guidelines differ on a case-to-case basis. (USA&M Rules of Arbitration, 2008) In the case at bar, the issue involves negligence on the part of a restaurant management, as alleged by a complainant. The complainant is Carmen Solis and relatives, while the respondent is Juanita Solis. The facts are as follows: Carmen worked for her mother for several years in their restaurant business, her mother as the restaurant manager. Despite being treated abusively by her mother, Carmen endured such treatment and worked faithfully for the restaurant. When both of her parents died, she thought that she will be made manager in exchange for her faithful service. However, her parents’ last will and testament gave the managerial position to Carmen’s sister Juanita, a graduate of business management. Carmen was disappointed because without her help in running the restaurant, it would have not survived, and Juanita will not be able to finish her studies. But she can not do anything but comply with the conditions of her parents’ last will and testament, and give up her hopes for the managerial position. To soothe Carmen’s feeling, Juanita made her as night manager of the restaurant. Juanita was able to manage the restaurant quite well for a year. Eventually, however, Juanita demoted Carmen to being a waitress again. Because of depression, Carmen started drinking alcoholic beverages and became a drunkard. Carmen, since then, was not given any promotion because of her alcohol problem and frequent absences from work. One night, both Carmen and Juanita were inside the restaurant, the former was drunk for drinking alcohol and the latter was counting receipts. When Carmen stood up, she spilled her drink and slipped on the spill, causing severe back injury. After the unfortunate incident, Carmen sued the restaurant management for negligence. Moreover, Juanita is being blamed by her other siblings, telling her that it is her fault why Carmen became a drunkard and that she is only given the managerial position because Carmen was the only one of the siblings who stood up to their mother. It should be considered that although Juanita and Carmen are both employer and employee, respectively, to each other, their relationship as siblings is stronger and should be more emphasized than their employer-employee relationship. Therefore, the arbitration and mediation should be guided by the rules settling family disputes, supported by their relationship as employer-employee. For this, Civil Code will suffice. But since arbitration and mediation are the alternative dispute resolutions applied, legalities will not be strictly observed. But, according to Taylor (n. d.) to be impartial between the two conflicting parties, arbitrators and mediators should not be driven by emotion but by justice and reason, requiring the assistance of the law. In settling the present dispute between siblings Carmen and Juanita, it should be noted that the Civil Code of the United States promotes the solidarity of every American family. Under Article 133 of the said Civil Code, it clearly expresses that all family disputes should be tried to be settled first by the conflicting family members themselves. No other third parties should be involved in settling such disputes, as it could possibly be the reason for the disintegration of a family. Moreover, under Article 123 of the same Code tackling human relationships, relationships between family members is given such a great importance. Family is defined by the said statute as the primary unit of the American society. This is why settling family disputes should be handled with great care. Arbitrators and mediators should be sensitive to the case and very neutral and impartial. (www.united-america.org) Juanita is being sued for negligence for not maintaining the floor of the restaurant dry. Carmen complained that it is her sister Juanita’s fault that the floor was wet, that she slipped on it, and that she suffered severe back pain. Messel v Foundation Company (274 U.S. 427) cited Article 2315 of the Revised Code of Louisiana, stating that every damages caused by one to another makes the former accountable for the damages sustained by the latter. Such damages may include injuries suffered by an employee while in the performance of his duties, thus making his employer liable for the injuries he suffered (274 U.S. 432). Following such jurisprudences, it is clear that the back injury suffered by Carmen is not because of Juanita’s negligence in keeping the restaurant floor dry. Based on the aforementioned facts, nothing was said that the floor was already wet before Carmen spilled her own drink on it. The floor was dry and not slippery before Carmen spilled her beverage on it. Therefore, it is obvious that it was Carmen’s fault she slipped. The accident happened can not be blamed to Juanita or anyone else but Carmen herself. Moreover, observe that the facts said “the former was drunk for drinking alcohol and the latter was counting receipts.” It is obvious that the restaurant was already closed when the accident happened. Also, Carmen was obviously not in the performance of her duty as a waitress. It is very clear that her duty was long done when the accident happened because she was already drunk. These scenarios are enough to free Juanita from any liability for Carmen’s injury. However, Carmen and her siblings, except Juanita, could file a claim over the managerial position of the family-owned restaurant from Juanita, in favor of Carmen. Remember that Carmen was responsible, when her mother was still the restaurant manager, for the maintenance of the restaurant. Both parties agree that without Carmen’s help then, the restaurant would have not survived. Moreover, the other siblings consider that Carmen deserves the managerial position because of her devotion in serving for business. The other siblings are deeply against Juanita and blame her for what happened to Carmen. Considering such, it would be unfair for Juanita if the managerial position will be taken away from her in favor of Carmen. Juanita is a business management graduate, which could mean that her parents really wanted her to take over the family business. Juanita should also be commended because she is able to run the restaurant well for a year without Carmen’s help. This means that she is as much as, or even more, effective than Carmen in handling the said business. Obviously, Juanita can not be blamed for whatever happened to Carmen. But for the sake of family relationship, Juanita could give back to Carmen the position of night manager of the restaurant. Maybe Carmen has been attached to the restaurant already and being stuck to a low position affects her emotionally and socially. Carmen’s past services for the restaurant should be given credit by Juanita, and it would only be fair to share the successes of the business. In resolving the dispute between the sisters, jurisprudence on the same or similar situation would be very helpful in coming up with a very impartial decision. The facts stated and agreed upon by both parties is very useful in coming up with a fair decision. However, as a legal counsel tasked to settle the dispute, it would b wise to let Juanita and Carmen talk to each other to let them come up with a decision, agreeable to both of them. It is obvious that the root cause of the problem is Carmen’s jealousy for the managerial position, and Juanita’s control over such position. If both parties would agree to share the position, or even just manager and assistant manager maybe, to each other, then there is a chance that both will be perfectly fine in dealing with each other. After all, it is a business owned by the Solis family, and not by either Juanita or Carmen. It is just that the last will and testament of the conflicting parties’ parents stated that Juanita is to take over the managerial position. References Newhall, Christine L. (2008). Benefits and Opportunities in Mediation and Arbitration. Taken on 18 April 2009 from http://www.nysscpa.org/cpajournal/2004/304/essencials/p62.htm Taylor, Sarah. (n. d.). What are Mediation and Arbitration? Taken on 18 April 2009 from http://www.alllaw.com/articles/legal/article9.asp Arbitration & Mediation. (n. d.). Taken on 18 April 2009 from http://www.adr.org/ Louisiana laws. (2008). Taken on 18 April 2009 from http://www.legis.state.la.us/lss/lss.asp?doc=109369 Messel v. Foundation Company, 274 U.S. 427. (13 May 1927). Taken on 18 April 2009 from http://supreme.justia.com/us/274/427/case.html#432 Northeast Marine Terminal Co., Inc. v. Caputo, 432 U.S. 249. (17 June 1977). Taken on 18 April 2009 from http://supreme.justia.com/us/432/249/ USA&M Rules of Arbitration. (2008). Taken on 18 April 2009 from http://www.usam.com/services/arb_rules.shtml United-America. Civil Code. (2008). Taken on 18 April 2009 from http://united-america.org/default.asp Read More