Advanced Dispute Resolution (ADR) - Final Examination Take Home

2019 May Semester
LAWS13-529
Advanced Dispute Resolution (ADR)
FINAL EXAMINATION
“TAKE HOME”
1. This examination will be released on or before Friday 26
July 2019 (week 11).
2. You must complete and submit your exam answers by
email directly to the course co-ordinator by 11 pm on
Monday 5 August 2019 (week 13).
3. Please read the attached instructions carefully.

Answer to Question 2
Mediation is an impartial third party's participation in supporting and helping those
engaged in a dispute find a solution.1 In mediation, the third party, the mediator, has the
assistance to assist them to reach an agreement. Mediation, official or informal, can often
assist to resolve disputes that go beyond the point of negotiation.2
A neutral mediator enables the parties to achieve a mutually reasonable decision of their
conflict in a mediation procedure. Any settlement is registered in an agreement that can be
enforced.
 Mediation is a non-binding practice controlled by the parties
A mediating party cannot be forced to recognize an outcome it does not like.3 In contrast
to a judge, the mediator is not a decision-maker. Rather, the mediator’s part is to support
the parties to achieve a settlement of disputes.
 Mediation is a confidential methodology
The parties cannot be forced to reveal data they prefer to keep the mediation confidential.4
If a party chooses to unveil confidential information or make admittances to promote
dispute resolution, that information cannot be revealed to anyone outside the mediation
1VanderWeele, Tyler J. "Mediation analysis: a practitioner's guide." Annual review of public health 37 (2016): 17-32.
2 Bingham, Lisa B., and Tina Nabatchi. "Dispute system design in organizations." Handbook of Conflict Management. Routledge, 2019.
121-144.
3 Menkel-Meadow, Carrie. "Mediation, arbitration, and alternative dispute resolution (ADR)." International Encyclopedia of the Social and
Behavioral Sciences, Elsevier Ltd (2015).
4 Lo, Chang-fa, et al. "Draft Rules of Procedure for Mediation Conducted under the Asia-Pacific Regional Mediation Organization." Asian
J. WTO & Int'l Health L & Pol'y 13 (2018): 17.

framework under the World Intellectual Property Organization (WIPO) Mediation Rules,
including in subsequent litigation or arbitration proceedings.
 Mediation is an interest-based procedure
The conclusion of the case is indomitable by the facts of the conflict and the appropriate
laws in court. 5 In mediation, the parties may also be directed by their corporate interests.
The parties are therefore free to select a result-oriented approach. 6
Negotiation is a deliberative method between two or more actors seeking a solution to a
common problem or negotiating a value item. Negotiating abilities are the methods that
negotiators use to generate value and claim value in and beyond their company deal-making
agreements.7 Negotiating abilities can assist you to make deals, solve issues, manage
disputes, create and maintain relationships. With deliberate effort, negotiation skills can be
cultured and should be exercised once well-read.
Exchange preparing incorporates a scope of exercises attempted and practised by
mediators to improve their abilities and methods. Pretend copies created from factual
research and arrangement contextual analyses, exchange preparing provides advantages to
groups and people looking to produce and attest higher motivation in their dealings.8 By
exploring the exchange procedure viably from set-up to execution duty, you can augment the
assessment of your results with the correct abilities.
5 Saundry, Richard, Tony Bennett, and Gemma Wibberley. "Inside the mediation room-efficiency, voice and equity in workplace
mediation." The International Journal of Human Resource Management 29.6 (2018): 1157-1177.
6 Malizia, Deborah A., and Jessica Katz Jameson. "Hidden in plain view: The impact of mediation on the mediator and implications for
conflict resolution education." Conflict resolution quarterly 35.3 (2018): 301-318.
7 Chapman, Elizabeth, Edward W. Miles, and Todd Maurer. "A proposed model for effective negotiation skill development." Journal of
Management Development 36.7 (2017): 940-958.
8 Malin, Martin H., and Deborah I. Ginsberg. "Flipping the Classroom to Teach Workplace ADR in an Intensive Environment." J. Legal
Educ. 67 (2017): 615.

Communication is the core of the process of company and management. Business
communication relates to teaching that is shared for the business benefit of the company
between individuals within an outside a business organization. It can also be described as the
dissemination of data by its people within a company.9 Business communication is
communication between two or more business-related parties. In W.H's view, "Business
communication is called the exchange of thoughts, news and opinions between the associated
parties in connection with the company." There are a number of elements that play a
significant part in this exchange of opinions and thoughts.
Negotiation is a people-to-people debate that takes into consideration the requirements
and interests of everyone so that no one gets lost. In business communication, avoiding
disputes and finding an option that fits everyone is very crucial. The great exchange is
significant as it contributes a ton to the accomplishment of the business and makes more
noteworthy connections and the goal of any arrangement is to arrive at an understanding that
will create a shared advantage.10 Negotiation is a method of providing and taking, which
implies giving the other party concessions, which means a lot to them but little to you. Good
negotiation implies leaving each party happy and ready in the future to engage in company
with each other. Good negotiations are extremely appreciated in today's competitive market.
These abilities can be created through exercise and multiple strategies for those who do not
have negotiating abilities in business communication.
9 Wihler, Andreas, et al. "Personal initiative and job performance evaluations: Role of political skill in opportunity recognition and
capitalization." Journal of Management 43.5 (2017): 1388-1420.
10 Singer, Linda. Settling disputes: Conflict resolution in business, families, and the legal system. Routledge, 2018.

A good negotiator strives to obtain a successful result that benefits both sides. A
significant aspect of business communication is learning how to negotiate and improve your
abilities. The key to company achievement is the ability to negotiate well. The main approach
any negotiator utilizes to get what they want is to use efficient business communication and
interpersonal skills. 11
Negotiation skills are helpful for companies to address any differences that occur in a
company environment between distinct individuals. All employees depend on their
communication skills to ensure that the negotiations are smooth and therefore they need to
embrace certain abilities for effective negotiation.12 Negotiation skills are very essential in the
company and are one of the key skills evaluated when staff are recruited and therefore
negotiation skills are a desirable asset for work applicants. An individual with interpersonal
skills is efficient in guiding change, has excellent communication skills, and through
collaboration and negotiation is able to resolve disputes.
Active listening is an essential skill in company interaction. This skill enhances the
individual’s ability to listen actively to what the participants have to say about the matter and
then determine the underlying causes. This helps in reaching a better conclusion with better
facts and figures.13 The capacity to control, redirect and communicate with getting affected by
emotion is a necessary skill for a good negotiation. Conducting a negotiation in an
organization in collaboration with a team will enhance the delivery of the negotiation. It is
11 De Clercq, Dirk, et al. "The relationship between workplace incivility and helping behavior: roles of job dissatisfaction and political
skill." The Journal of psychology (2019): 1-21.
12 Noe, Raymond A., et al. Human resource management: Gaining a competitive advantage. New York, NY: McGraw-Hill Education,
2017.
13 Devinatz, Victor G. "What makes a good mediator? Insights from a mediation training program participant." Employee Responsibilities
and Rights Journal 30.3 (2018): 181-201.

observed that empathy-high people are self-disciplined, competitive, and initiative-initiated.
They are resourceful and resolute as well. Letting go of the impulsiveness of an individual
will better the chances of winning the negotiation. Patience is the key to delivering the
viewpoints appropriately with fewer misunderstandings. A person must present his or her
opinions with full confidence and assertiveness while negotiating, and reach an agreement or
conclusion that benefits everyone.
Answer to Question 3
Judges are assuming a great deal of jobs. According to Bachmayer, Peter and August,
(2015) judges translate the law, assess the evidence submitted, and manage how in their
courts hearings and preliminaries unfurl. 14 Above all, in the quest for equity, officers are fair-
minded leaders. We have what is known as antagonistic legal plan legitimate cases are
debates between restricting gatherings, guaranteeing the full and compelling introduction of
verification and lawful contentions. Not with standing, the judge remains over the brawl,
offering a self-ruling and unbiased assessment of the certainties and how the law identifies
with the actualities. A judge’s session without a jury will hear plentiful criminal cases–and
practically all thoughtful cases. The judge is the "trier of the real world" who chooses if the
evidence is tenable and which observes come clean. At that point the judge relates the law to
these actualities to decide if the suspect is liable of a common case dependent on a harmony
of prospects or whether, in criminal occurrences, there is proof past a utilitarian uncertainty.
Anybody confronting five years or more in jail whenever indicted for a wrongdoing
has the license under the Charter to apply for a jury preliminary, and numerous guilty parties
14 Bachmayer, Peter, and August Reinisch. "The Role of Judges at Austrian Courts in the Development of International Law." The Law &
Practice of International Courts and Tribunals 14.1 (2015): 151-170.