adr project final.docx
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DECLARATION
The text reported in the project is the outcome of own efforts and no part of this project
assignment has been copied in any unauthorized manner and no part of it has been incorporated
without due acknowledgement.
R ISHABH AMBER $UPTA [2011%B#B#A LL#B% 0 !
S%(
ANJULI MARWAH [2011%B#B#A LL#B%00'!
S%(
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R ESEARCH METHODOLO$Y
R ESEARCH )UESTION
1. What are the types of hybrid !" models in the legal system#$. What is the major difference between arb-med and med-arb models of hybrid !"#
SCOPE & LIMITATION
The scope of this paper extends to merican% &ritish and 'ndian law.
HYPOTHESIS
This paper aims at the (uestion of different types of hybrid !" models and also critically
analyzes the contrast between arb-med and med-arb.
OBJECTIVES
This paper attempts to car)e out a clear picture of types of hybrid !" models and its contrasts.
This paper aims to critically analyze the laws and concepts of hybrid models of !". This paper
analyzes the outcomes of )arious hybrid !" models.
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TABLE OF CONTENTS
!eclaration.......................................................................................................................................1
" *+*",- *T-/!/0/2..............................................................................................................$
Table of ,ontents.............................................................................................................................3
'ntroduction......................................................................................................................................4
5arieties of ixed or -ybrid Processes..........................................................................................6
'. ed7rb...............................................................................................................................6
''. rb7ed............................................................................................................................6
'''. ediation Windowing.......................................................................................................8
'5. 'ncenti)e rbitration.........................................................................................................8
5. initrial............................................................................................................................8
,ontrasting the two hybrid procedures............................................................................................9
. Procedural reference of parties......................................................................................9
&. What are the implications of these processes for procedural preference among the two
hybrid procedures#...................................................................................................................:
,. -ow hybrid procedures affect disputant expectations and beha)iors.........................1;
!. &eha)iors !uring the ediation Phase.......................................................................1$
*. 'mmediate and long7term outcomes............................................................................16
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INTRODUCTION
ediation% arbitration and non binding e)aluation are basic !" forms. *ach of the >basic
three? has characteristic strengths and weaknesses. The idea behind ha)ing a mixed or hybrid
and multimodal dispute resolution process is that this model pro)ides the best of attributes of
each and to tailor dispute resolution more precisely to the uni(ue situation presented. 1
There are )arieties of hybrid models of alternate dispute resolution )iz. arb-med % med-arb%
mediation windowing% minitrial and incenti)e arbitration. This paper attempts to discuss the two
major hybrid models which are arb-med and med-arb. This paper attempts to compare the two
major hybrid processes which are med-arb and arb-med % following a temporal se(uence.
The parties desire to maintain control o)er both the dispute resolution process and its outcomes.
This desire of the parties affects disputants@ procedural preferences and their resulting procedural
choice% if any choice is a)ailable.$ There are se)eral conse(uences of using a particular hybrid
procedure for disputant expectations and beha)iors% as well as immediate and long7term
outcomes from using the procedure.3
1 rnold% A.% B ,arne)ale% P. A. 1::=% Preferences for dispute resolution procedures as a function
of intentionality% conse(uences% expected future interaction% and power. Aournal of pplied +ocial
Psychology% $=C 3=173:9
$ &urgess% P. 0.% B arburger% !. ". 1::3% !o negotiated and arbitrated salaries differ under
final7offer arbitration# 'ndustrial and 0abor "elations "e)iew% 48C 649766:
3 ,obbledick% . 1::$. rb7edC n alternati)e approach to expediting settlement. Working
paper% -ar)ard Program on Degotiation% -ar)ard Eni)ersity% &oston.
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VARIETIES OF MI*ED OR HYBRID PROCESSES
I# MED-ARB
ed7rb begins with mediation% but the disputants agree beforehand that% if full settlement does
not result% it will be followed by arbitration.4 !isputants ha)e at least two important reasons for
selecting med7arbC +ome want the ad)antages of mediation and the certainty of adjudication%
whereas others belie)e the specter of arbitration acts as an incenti)e to push disputants to be
more accommodating to one another.6 ed7arb includes a number of important sub7)arieties. 'n
med-arb-same% the arbitrator and mediator are the same person% whereas in med-arb-different % the
roles are ser)ed by different people.8 'n co-med-arb% the mediator and arbitrator are different
people but both attend the mediation so that time can be sa)ed by presenting e)idence only once.
/pt7out med7arb is a )ariation in which med7arb7same is initially specified% but% upon the
election of either disputant% the process changes into med7arb7different.=
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V# MINITRIAL
initrial is basically an incarnation of a non binding e)aluation process. There is also a hybrid
)ersion% which does not feature an e)aluation by the neutral.1$ minitrial is an abbre)iated
)ersion of a litigated dispute% attended by the disputants or their officers or directors who ha)e
the authority to settle.13 Typically% a neutral third party is present to moderate the proceeding.
summary )ersion of the e)idence is presented so that the representati)es themsel)es can get a
sense of the strengths and weaknesses of their respecti)e cases.14
1$
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CONTRASTIN$ THE TWO HYBRID PROCEDURES
To compare the two major hybrid processes which are med-arb and arb-med % a temporal
se(uence has to be followed. The parties desire to maintain control o)er both the dispute
resolution process and its outcomes. This desire of the parties affects disputants@ procedural
preferences and their resulting procedural choice% if any choice is a)ailable. There are se)eral
conse(uences of using a particular hybrid procedure for disputant expectations and beha)iors% as
well as immediate and long7term outcomes from using the procedure.
A# PROCEDURAL REFERENCE OF PARTIES
When parties are offered a choice of hybrid procedures% the important (uestion which crops up is
the preference for med-arb or arb-med .16 The (uestion for preference is of utmost importance
precisely for three reasons. Firstly% if they do not prefer a particular procedure% the parties may
a)oid using it% which may ha)e implications for dispute resolution system functioning Fe.g.% staff
and resources may be in)ested in procedures that few disputants want or useG. 18 Secondly% the
parties may beha)e differently when using a procedure they do not fa)or relati)e to one they
prefer% affecting both processes Fe.g.% the amount of information re)ealedG and outcomes
Fwhether a )oluntary settlement is reachedG.1= Thirdly% the parties@ preferences may be related to
justice beliefs% which% in turn% may affect compliance rates with imposed decisionsL disputants
16 +ander%
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may be less likely to comply with decisions that were reached using seemingly unfair
procedures.19
The disputants are primarily moti)ated by self7interest in cases of >interest7based disputes?. The
conse(uences of this self7interest moti)e for procedural preference are numerous and
multifaceted.1:
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e)idence will be most compelling to the third party. To reduce such uncertainty% each party may
exaggerate its demands and reduce its le)el of concession making a phenomenon known as the
chilling effect% hoping that the arbitrator will Jsplit the differenceJ and gi)e them a modestly
fa)orable settlement.$4 The parties also may employ impression management techni(ues
designed to con)ince the third party of the )irtue of their respecti)e positions. $6
B# WHAT ARE THE IMPLICATIONS OF THESE PROCESSES FOR PROCEDURAL PREFERENCE
AMON$ THE TWO HYBRID PROCEDURES+
With med-arb the parties retain decision control during the mediation phase. The parties exercise
process control by engaging in impression management during mediationL they also exercise
process control by presenting additional e)idence and formal arguments during any subse(uent
ad)ersarial type of arbitration hearing.$8 't is only at the end of the process that they relin(uish
decision control. Thus% with med-arb the parties retain process and decision control longer and
ha)e greater opportunity to reduce the uncertainty associated with recei)ing an arbitrator@s
binding decision.$= 'n contrast% with arb-med the parties ha)e only one chance to influence the
third7party@s binding decision7at the initial arbitration hearing.$9 Thus% although the parties
technically retain decision and process control throughout the subse(uent mediation phase% they
$4 'd
$6 0e)inger% .% B "ubin% A. M. 1::4. &ridges and barriers to a more general theory of conflict.
Degotiation Aournal% 1;C $;17$16.
$8
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must also recognize that a binding decision has been rendered already only not yet Jser)edJ and
that any further impression management attempts will be ineffectual.$: The early forfeiture of
decision control% thus% is salient throughout the mediation phase of arb-med .3;
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agreement will not occur unless one side changes its resistance point.34 The arb-med procedure is
more likely to change the resistance points of the disputants% leading to a greater probability that
an o)erlapping zone of agreement will exist.36 These characteristics make arb-med a less
preferred procedure7the prominence of the JthreatJ of an arbitration ruling during the mediation
phase% the reduced opportunity for outcome control through impression management% and so on7
also work to lower disputants@ outcome expectations.38 0ower outcome expectations should lead
to an increased likelihood of a positi)e zone of agreement and% thus% should produce more
cooperati)e beha)ior by the disputants.3= +econd% there is e)idence that disputants in arbitration
settings o)erestimate their probability of success and the med-arb procedure does little to address
this o)erconfidence.39 'n fact% med-arb may heighten o)erconfidence% because disputants who do
not settle in mediation can continue to direct impression management attempts toward the third
party during arbitration and thereby continue to bolster their false estimate of pre)ailing in
arbitration.3: 'n contrast% arb-med may cause disputants to acti)ely consider the possibility of
losingC because a ruling already has been rendered% the disputant must entertain the possibility
that the ruling has been unfa)orable.4; !isputants may estimate the probability of an unfa)orable
ruling and then adjust it during mediation% whene)er the mediator offers positi)e or negati)e
34 'd
36 +ee supra note $=
38 +ee supra note 3
3= "ose% A. &.% B anuel% ,. 1::8% ttitudes toward collecti)e bargaining and compulsory
arbitration. Aournal of ,ollecti)e Degotiations in the Public +ector% $6C $9=731;
39 'd
3: ,obbledick% . 1::$. rb7edC n alternati)e approach to expediting settlement. Working
paper% -ar)ard Program on Degotiation% -ar)ard Eni)ersity% &oston.
4; 'd
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would ha)e a larger numbers of parties connect in cooperati)e beha)ior when arbitrators@
decision is uncertain.
Conclusion 1: In the mediation phase, parties will act in a more harmonious manner in
arb-med model than in med-arb model.
D ISCLOSING INFORMATION
major part of harmonious beha)ior is disclosure of information. The disclosure of more
information is results in a higher probability of arri)ing at an integrati)e% high7(uality
cooperation. 'nformation dissemination occurs mostly during pri)ate discussions with a
mediator. 2et% parties may be unwilling to di)ulge information if they dread that the other side
may use that information when making an ensuing arbitration ruling43. This probable loss of
outcome control through re)ealing information in mediation is an intrinsic problem in the med7
arb model.
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reconcile and make them more interested to mediation proposal. -owe)er% studies also reflect
that this certain benefit to settle% is the only factor that increase the probability of settlement and
parties need definite direction from their third party as well. 'f parties are incenti)ized to settle
their dispute through mediation% then% when the third party pro)ides express help by way of
recommended settlements% the parties are to be expected to make increased concessions to reach
toward that recommended settlement le)el. The result of this process is the increased chances of
concord between the parties. +ince mediators regularly and fre(uently suggest settlements% this is
not a uni(ue and rare beha)ior.
Conclusion !: "arties will respond to mediator#s recommendation for settlement with
more discounts in arb-med model than in med-arb model.
Conclusion $: "arties will abide by mediator#s proposals more re%ularly in arb-med
model than in med-arb model.
E# SHORT AND LON$-TERM RESULTS
't is pertinent to discuss both types of conclusion since it is (uite possible that one hybrid model
may instigate instantaneous outcomes% but% if the contesting parties want that dispute should
settle% then that may ha)e long7term results% such as being committed to stand for by the
agreement44. rb7med usually ha)e a higher number of relati)e ad)antages with respect to short
term results and med7arb is more beneficial for the long7term outcomes.
I MMEDIATE OUTCOMES & S ETTLEMENT FREQUENCY
/ne of the objecti)es of dispute resolution mechanisms is to gi)e more boost to )oluntary and
relati)ely (uick settlements. This implies that a settlement during the mediation phase% where the
parties ha)e control in decision outcome% is more preferable to an award in the arbitration% since
the parties ha)e willfully agreed to the settlement and because obligation under arbitration tends
44 Kressel% K.% B Pruitt% !. . 1:9:% ,onclusionC research perspecti)e on the mediation of
social conflict. 'n K. Kressel B !. . Pruitt F*ds.G% ediation researchC 3:47436. +an
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to increase. rb7med will bring into being a more settlements during the mediation phase than
those in med7arb. 't has been noted by many scholars that in arbitration% the parties who had
already arri)ed at negotiations ga)e sealed final7offer bids to the arbitrators deciding their subject
matter. -owe)er% before getting the arbitrator@s award% the parties (uite often manifested a
plethora of negotiation acti)ity% as their aim is to shun an arbitrated settlement46. The regularity
of settlements that happens post arbitration proceedings but before to the decision suggests that
the curtailment of the arbitration and the decision making phase as is found in)ariably in the arb7
med procedure would lubricate the progress of )oluntary settlements. lso% if the parties ha)e
lower fa)orable outcome probability with arb7med% they will be further encouraged to a)oid
arbitration.
Conclusion &: There will be %reater number of mediated resolutions usin% arb-med
model than by usin% med-arb model.
QUALITY OF DISPUTE RESOLUTION
The rele)ance or significance of settlements arri)ed at in the mediation phase is increased in arb7
med model than in med7arb model. This statement flows from the conclusion that disputants
di)ulge more classified information in the mediation phase of arb7med. The certainty and
re)elation of information is attached with a higher probability of reaching at an integrati)e and
high7(uality settlement. 'ntegrati)e settlements gi)es a higher o)erall benefit than do non
integrati)e settlements% whether (uality is elucidated in terms of joint pay7offs or Pareto
efficiency or creati)ity48. 'f the parties contribute more information and are more interested in
reaching the solution% then the chances of arri)ing at a high7(uality mediated settlement is
increased manifold with the arb7med procedure.
46 &urgess% P. 0.% B arburger% !. ". 1::3% !o negotiated and arbitrated salaries differ under
final7offer arbitration# 'ndustrial and 0abor "elations "e)iew% 48C 649766:
48 Tripp% T.% B +ondak% -. 1::$. n e)aluation of dependent )ariables in experimental
negotiation studiesC 'mpasse rates and Pareto efficiency. /rganizational &eha)ior and -uman
!ecision Processes% 61C $=37$:6.
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Conclusion ': Settlements arried at in the mediation more li(ely to be of superior
)uality in the arb-med model than in med-arb model.
TIME AND PRICE SIGNIFICANCE
Whereas there are few conclusions that fa)ors the no)el arb7med procedure% most of the other
conclusions reached at in this study till now strengthen the better7known med7arb procedure.
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partiesI confidence of such control will be much higher in med7arb. The fa)orable treatment
meted out by disputants before the third party also may sway their procedural justice choices.
The parties may consider that a mediator@s re(uest for a relaxation during the mediation phase of
arb7med model as more suppressing and intimidating than the similar demand in the mediation
phase of med7arb model. 'n the arb7med model the parties may opine it as a warning of what will
come if no settlement is arri)ed. This may lead disputants to feel that they were treated with less
re)erence and empathy in the arb7med procedure. Dotions of empathetic treatment and re)erence
play a pi)otal role in the interactional justice and in the )arious procedural justice model.
!istributi)e righteousness in outcomes are also expected to be higher in med7arb. With respect to
outcomes arri)ed in mediation% parties in arb7med may feel )ery burdensome to consent for the
reason that crisp recommendations made by the third party% magnified by the threat of the
arbitrated conclusion that already exists but is not yet disclosed. Parties may look any mediated
agreement arri)ed at in arb7med as Jpressurized%J upon losing the control o)er the resultL this
infringes justice criterion of partiality repression.49 +ince the outcome is ascertained prior to
mediation% it is not responsi)e to concessions% procedural de)elopments% or relationship amends
between the parties that may ha)e occurred during the course of the mediation phase. This might
result in parties to think that the arb7med model relies on less precise information Fsince the
arbitrator makes his or her decision without the assistance of new informationG or maybe it is a
procedure that )iolates existing benchmarks of ethics. &oth precision and ethics are major
fairness7enhancing tools. Thus% to the extent that arb7med )iolates the normati)e prospect of
what an ideal procedure should be% parties would consider med7arb model as more fair in terms
of its procedure and distributi)e justice.
ADHERENCE TO THE SETTLEMENT OUTCOME
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mediation% )ersus only 49 percent for adjudication in small claims court.4: 'n the labor7
management domain% non7adherence may take the form of attempting to arri)e contract
alterations )ia the accusation machinery.
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CONCLUSION
The strength of arb7med model lies primarily in its inherent moti)ational capacity. 't appears to
be intimidating and lessening each party@s decision control% the procedure would subordinate
partiesI interest and produce uncertainty among them. These complex analysis should encourage
the parties to maintain decision control and prefer med7arb model o)er arb7med model.
'n the nut7shell% we can say that the biggest ad)antage of arb7med procedure is that it moti)ates
parties to reconcile their differences among themsel)es% whereas the greatest ad)antage of the
med7arb procedure is amplified confidence and satisfaction of e(uitable treatment and greater
adherence with the arbitral decisions which is a more long7term effect. This explanation of
relati)e strengths described as abo)e strongly ad)ocates that policy designers andQor parties
should pursue a dynamic and rational approach to select a dispute resolution procedure% on the
basis of specific criteria% they aim to maximize.
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