It is a voluntary process but is often previously agreed by the parties before

It is a voluntary process but is often previously

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- It is a voluntary process but is often previously agreed by the parties before the dispute e.g. under a contract term. - The arbitrator may be chosen by the parties or by an independent third party e.g. the Hong Kong International Arbitration Centre. He may be a professional or a layman. - The process is private and confidential. c) Litigation: a dispute resolution model that is inquisitorial and adversarial whereby the disputant initiates legal action against the other party by going to court. - It has a win/lose outcome and rarely satisfies both parties. - It is costly and causes much delay for the disputants and may not do justice to the parties as confirmed by the Lord Woolf’s Report 1996. - The court may only grant a limited number of orders or judgments for the parties as resolutions. 3
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- The court decision becomes a precedent. - Litigation is necessary to protect human rights issues and public interests and it is a public process. - The benefit of litigation is that the court has authority to find out the “truth” from the parties and the enforcement of the order or judgment is supported by other law enforcement agencies. - It is used when parties are of low resources and need an empire or when they cannot agree to other forms of ADR. C. Development of ADR and Mediation The ADR movement is a phenomenon developed in the latter part of the twentieth century to create an alternative to the legal system for resolving disputes. This phenomenon is partly in response to the judicial system which is found to be failing in many respects – costs, time and not flexible in giving justice to the parties, and partly inspired by social philosophies such as individual rights to decide for themselves what is best for them. In the United States of America, mediation is commonly used in Labour disputes in settling strikes and union demands in the early part of the last century. In 70’s the use of mediation is adopted by the civic leaders and justice system officials for community disputes. In the mid 70’s the Harvard Business School project on negotiation has inspired an important book on the theory of negotiation and conflict resolution – “ GETTING TO YES ” by Fisher, Ury and Patton. Since then the court in California has started to use mediation for custody and visitation in divorce cases and is now one of the states that requires mandatory mediation in the USA. There are also mandatory schemes in place in Canada and Australia. In Hong Kong, the Hong Kong International Arbitration Centre is set up in the 1980’s for arbitration only and in 1994 a sub-division for mediation subsequently known as the Hong Kong Mediation Council is established under the same organisation. In 1997 a working committee chaired by Judge Hartmann is set up for introducing mediation in the Family Court system. A pilot scheme started in May, 2000 and was in operation for 3 years through the Mediation Co-ordinator’s Office at the Family Court. The Hong Kong International Arbitration Centre is the accreditation body for the family mediators under the pilot scheme.
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