Name: Yasameen Sami Al Mandalawi
Professor: Gross Jill
Subject: Alternative Dispute Resolution
Date: November 21st, 2018.
Arbitration Reflection Report
In my view, the “Pearson v. Newton Care Homes” dispute was suitable for arbitration. According to the factors that we have which are, when parties cannot reach to an agreement, the parties cannot find appropriate jurisdiction or one or both parties feel uncomfortable with the court system they can resort to alternative resolution especially in a large commercial company. Also, if the proceeding are too expensive or would take long time and both parties would like to save money and time by going to alternative dispute resolution and the most appropriate is arbitration. In addition, the arbitrators should be with expertise in the dispute thus in the “Pearson v. Newton Care Homes” the arbitrators had expertise, fairness reputation and they gave the opportunity to both parties to be heard. Another reason to make the dispute appropriate is when both parties require confidentiality and privacy thus arbitration is the most appropriate with the confidentiality and privacy. However, there is no rule forced the arbitrators from keeping the confidentiality nevertheless remain private. Of equal importance, if one or both parties want to have a final verdict with no chance of appeal the arbitration is appropriate to that situation. Thus, this is also cutting down on cost and the amount of time spent deciding a case.
In my view, the simulation had impacted me by made me recognized the differences between the alternative dispute resolution process that we had discussed in the class. Also, there was an obvious bias from one of the lawyers to the opponents witness when she asked her questions and did not give her the time or the opportunity to answer, unlike the witness from her side by giving her enough time without pressure to answer the questions. Thus, I feel that could be prejudiced in the arbitration by the lawyers and to not lead to a fair decision. On the other hand, the arbitrators were fair, unbiased, impartial and both parties were given the opportunity to speak and present the evidence, which makes the arbitration process fair. Also, when the chair tried to know about the law, he asked the staff attorney to know the answer and this is making me feel that the staff attorney is important to be their during the hearing and helping the arbitrators. In the end, the final verdict has been reached after the hearing, which makes the arbitration process faster than the courts and does not take much time.
In my point of the view, the final award was fair and unbiased based on the factors that we have with the confession of arbitrary dismissal of the employee who has submitted a good faith report on the violation of the law. Also, there was the witness’s testimony which affirms the good faith of the employee who was arbitrarily dismissal. The employee who was the detriment by arbitrary dismissal was compensated at his request by $ 25,000. He could claim twice the amount according to New Dover law §122.93. In addition, the respondents will bear full financial responsibility for any forum fees under the New Dover Law §122.93 which is protected those employees who report in good faith.
I believe they will not be better if they resort to a court because the court is somehow similar to the arbitration proceedings and I believe they will reach to the same award.
Unlike arbitration, which is a complex process that requires high costs, mediation is done by involving a third party who has one job is make the parties closer in order to reach an agreement and settle the dispute amicably. Mediation is more effective than arbitration or litigation. The ultimate goal is not only to apply legal provisions, but also to maintain a labor relationship. Mediation creates a satisfactory solution for both parties and this is very important because, in commercial disputes between the employees or the chairman, the main purpose is to maintain the corporate relationship with its employees and a chairman. By using arbitration or litigation oftentimes lead to results that could have one winner and the other lose. It is also based on the idea that the arbitration process hurts or ends the working relationship. However, mediation can make both parties are winners by talking to each other, trying to maintain the relationship and reach a satisfactory agreement.
In the United States, commercial arbitration is useful since it has often regarded as having several distinct advantages over court litigation, including potentially greater speed and efficiency than typical court litigation. Privacy and confidentiality, at least in the sense that unlike court proceedings, arbitral hearings are closed to the public. However, in the context of judicial enforcement or challenge proceedings, arbitral awards often are publicly disclosed. Moreover, freedom to select the decision makers and freedom to select the procedural rules, usually through the designation of specific institutional arbitral rules or procedures, and typically greater flexibility of the process. In addition, it has more limited discovery than US court litigation. Avoidance of having a dispute heard before the opposing party’s potentially hostile home courts, judges, and/or juries. This factor is especially important in the context of international commercial arbitration. Also, more limited grounds for challenging awards than in a typical judicial appeal process, and therefore potentially greater ease of enforcement for prevailing parties. Thus, greater ability to win parties in arbitration to recover their fees and costs as opposed to US court litigation, where under the “American rule”, attorneys fees are presumptively borne by each party. Consequently, many of these perceived advantages can also be regarded as disadvantages depending on a party’s position in the dispute. For instance, losing parties may desire a wider scope of judicial review to challenge arbitral awards. Additionally, particularly in high-value commercial disputes, where there has been a trend towards greater document discovery and parties often seek regular court intervention, some of the traditional efficiency advantages of arbitration may be eroding.
I would just like to point out one thing which is, nowadays commercial arbitration is similar to court proceedings and, sometimes, arbitrarily. There are many things that can make the arbitration process more effective and fairer. For example, in order to reduce the arbitration risk, a new method I would prefer to add to the procedure which is the “optional appeal” and this option can make the parties appeal with the decision in case to did not satisfied with the final decision from the arbitrators and that make them able to have to another hearing. This is similar to the litigation procedure in which the litigant can appeal from the Court of First Instance to the Court of Appeal but somehow faster.