Introduction
Alternate Dispute Resolution is a method of settling disputes without the intervention of the civil courts. This application of the mediation process is especially successful in conflicts of family, minor injuries, home negligence issues and most other disputes in which the settlement is relatively fixed and lowers than a jury trial would assess. There are three basic types of Alternate Dispute Resolution (ADR): arbitration, reconciliation and mediation . A mediator is a neutral third person who adjudicates the proceedings and is agreeable to both parties before entering into the negotiations. The parties have to additionally agree upon accepting the decision of the Mediator as binding and sign off as to any other further lawsuits or damage claims. The two parties will part with a settled dispute after arbitration or the recourse will be to a jury trial or completely give up on the claim. Another ADR is not available on the same issue.
One of the main advantages of accepting the decision of the Mediator is that both parties are given something. There is not a clear-cut winner or loser as would be in a jury trial. The Mediator in ADR sees to its hat both parties are made whole. For example, the Mediator will see to it that both parties gain something and even loss less than they would in a court proceeding. The Mediator’s position is to evaluate the similarities in the positions of the two sides and use that similarity to gain a mutually acceptable end result. This result though is not always a binding agreement between the parties as the Mediator has no enforcement power. The parties have to agree on the decision and the enforcement of it.
There is, however, a binding forum for ADR and that is a Formal Settlement Conference which produces a Binding Arbitration Agreement. In this scenario, a group of people who are not partial to either side run a small trial like procedure and come up with a Binding Arbitration Agreement. Again this is a settlement that generally is fair and impartial to both parties and is seen as a favorable decision rather than a full blown court proceeding. Another advantage of the ADR method is that the process is resolved much faster. For example, in the year of 2014-2015, 74%of cases were mediated to the final decision stage with less than 25 days as compared to years for a jury trial.
Discussion Paper for UBD Head of Administration
There are several element of the case of Mr. Shady that makes it a case for Alternate Dispute Resolution (ADR) rather than a trial. It is hoped that one of the three techniques that are discussed can be used effectively to adjudicate this matter to the mutual satisfaction of the University and Mr. Shady. Mr. Shady desires to continue his education with the University so that continual relationships will be maintained. The first technique to be discussed is that of negotiation as it is the most promising for the settlement of this case.
Negotiation
Negotiation in Alternate Dispute Resolution is defined as an informal means of resolving a dispute. The parties to the suit communicate their desires to each other and try to reach an agreement. These negotiations can have a lawyer present for each party or can stand without a lawyer. Negotiation is defined as communication for the purpose of persuasion. In this manner, the two parties the University and Mr. Shady can amicably discuss their positions and find a mutually acceptable resolution.
Negotiation has three approaches to resolving disputes. It is important to know each type before committing to using this form of resolution because each form allows for a possible different outcome. The first form is an interest-based negotiation which has the ability to lead to the best outcomes because the individuals involved in this dispute have interests at the core of the issue. For example, the University does not want to admit to any wrongdoing and pay a huge sum to Mr. Shady whereas the interest of Mr. Shady is to receive his education and a sum of money. In the second type of negation, the rights-based process there is an attept to retreat to the “rights of each individual. Mr. Shady has a “right” to be compensated the University has a right to be free from fault as it Mr. Shady did not follow the directions. And the third type is power based negotiation in which the threat of violence exists and this does not apply in this case as there are no protest or student uprisings planned by Mr. Shady if he does not win a settlement.
Mediation
Mediation is a process that uses a neutral third party person who has no apparent interest other than bringing the two parties to a mutually agreeable solution. Mediation is the same process as negotiation except that a third party who is neutral is managing the negotiation. The university is located in the Federal State or Province of Brunei which is owned by the Independent Sultanate and was formerly a British protectorate and so the British legal system is still very active and the ADR process that is a preferred method of dispute resolution.
Mediation is preferred because of its special advantages that include flexibility, informality, and privacy. The negations discussed in the mediation a process are private to all parties and as such no one is allowed to convey any of the matters that are brought up during ADR. The Mediation ends with a non-binding agreement usually and as long as both parties are satisfied the negations and case appear to be settled.
In the case of Mr. Shady, the use of a mediator is to his advantage since he probably will not have a lawyer present. To the University, the use of a lawyer is a routine matter and the Mediator will be especially attuned to the needs of Mr. Shady.
Mini Trial or a Court Trial
A court trial in an Alternate Dispute Resolution format is a mini trial and not a full-fledged trial as one might think of. It is more along the lines of a structured procedure in which several neutral people are present instead of any one mediator. The parties to the dispute present an argument. A lawyer may do this for the parties but it is not imperative that a member of the bar do this. The arguments are then presented to the Mediator and the mediator may be given suggestions or their opinion as the arguments are presented. In this manner, the arbitrator can effectively guide the trial members along a path of fairness according to the Mediator. In the mini-trial, expert witnesses can speak on behalf of either party. These witnesses are vetted or allowed to present their opinions on the case y the Mediator since there is no judge or rules of evidence to help the non-legal members of the mini-trial.
Alternate Dispute Resolution and the Case of UBD and Mr. Shady
1 Moving from a Distressed System to a Dispute Resolution
This diagram shows the dynamics of the case of UBD and Mr. Shady as the University and the Contracting Company hold the most power. However, the rights and freedom from pain that Mr.Shady has endured needs to surface to the top of the pyramid for justice to be served. As we examine the diagram the necessary steps need to be taken in order to save costs, and resolve the manner in a fair and equitable way but to also have the needs of Mr. Shady met in order to promote good will to the university. The university prides itself on a positive relationship with its students according to the message by the Chancellor on their website.
In an effort to resolve this issue with fairness to all the system of Mediation is highly recommended. And impartial mediator who can negotiate the problems in the case in an equitable fashion is an expedient and fair method that should be acceptable to all. Mr. Shady should have a lawyer present as the University will. This three individual who are all well versed in British law will be charged with presenting arguments favorable for each side to end up with the unlivable settlement. The only party not in the negotiation is the coordinator of the Discovery Program. There is not a formal inquiry by the University into the incident and so the information has to be assumed to be true as reported by the coordinator. It is recommended that the University meet separately with them before the Mediation in a negotiation forum. The coordinator has to be aware that all member of the trip is to follow the guidelines that are laid out for the course. Since the coordinator was in charge he needs to be made aware that the responsibility to ensure the proper following the guidelines is his responsibility and a discussion of the methods employed on the course and if more guides are needed to prevent these occurrences from happening.
Recommended Course of Action
Context is very important in contract law and that is especially true in this case. The context in this case also presents a very deep problem in that the relationship between the student and a school sponsored course makes this a different type of moral issue. Students entrust to the University a certain sense of paternity and in that assume safe conditions will be met. Mediation in personal injury cases is similar in all locations and they follow a specific format. In this case the liability is at issue and the evidence not complete. The use of a trial would be inappropriate so this mediator will judge based on the merits of the injury to the student. The biggest problem in this case is what the settlement amount is and the duty of care issue.
Duty of care is a legal term that is the responsibility of one person has to avoid the causing of harm to themselves or to others. The first act will be to establish who has the duty of care. Mr. Shady cannot prove that the University through the actions of the teacher was at fault in causing the injury, as Mr. Shady went on a separate path against the regulation. Mr. Shady cannot prove that the University was 100% at fault or negligent in any way except for the fact that perhaps there might have needed to be more counselors on the trip but still Mr. Shady did not follow the rules of his own free will. The actions in this case prove that Mr. Shady was the negligent party and that the injury would not have been sustained had he followed the path as the others on the trip none of which were injured.
As the duty of care is established as the university is still not exempt from claims of damages though as the university did not have procedures in place to handle the scenario of a student going off the path. In a lecture course if the student does not do the work the consequence is written out. In this Discovery Course there is no language to indicate the penalty or results of not following the path. The Mediator may assume this to be contributory negligence which if the University is deemed over 1% negligent able then there are some damages that are due to Mr.Shadey. Having established that the actions of Mr. Shadey caused the injury or at least played a role in it, the damage amount will be reduced accordingly by the Mediator is they so wish. That is the normal results of contributory negligence suits in ADR.
The final issue then is the issue of the amount of the damages. Since most injury cases are compensation orientated Mr. Shady will receive some compensation. He is asking for $50,000 and a full scholarship to UBD. Most injury claims include medical expenses which in this case appear to be covered under a medical health plan although it is not stated as such. These are important because in almost all cases the medical bills are paid. Income and property loss are not discussed either and the issue of pain and suffering and emotional distress over the loss of the swimming career are at the issue for the Mediator.
Conclusion
As a recommended course of action, the University should pursue the Mediator in an Alternative Dispute Resolution case. There is an issue with Mr. Shady contributing to the accident which will be considered to favor the settlement aspects of the case for the University. The emotional loss of a swimming career is a problem that resulted from the improper actions of Mr. Shady and cannot be considered part of the University settlement. An arbitrator will be looking of the fault of the university and they are at fault for not providing enough supervision but it is not known how many were on the trip. A recommended course of action for the arbitrator would be to offer Mr. Shady a full scholarship and no monetary damages. That is a method of splitting the award and would seem to satisfy the requirement of the University in not admitting to any fault and it will give Mr. Shady an alternative to swimming as a career choice.
References
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What is ADR? (2016, March 23). Retrieved April 1, 2016, from NYCourts.gov: https://www.nycourts.gov/ip/adr/What_Is_ADR.shtml
