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Dispute resolution or dispute settlement is the process of resolving disputes between parties. The term dispute resolution is conflict resolution through legal means.
Mediation is a negotiation facilitated by a third-party neutral. It is a structured, interactive process where an impartial third party, the mediator, assists disputing parties in resolving conflict through the use of specialized communication and negotiation techniques. All participants in mediation are encouraged to actively participate in the process. Mediation is a "party-centered" process in that it is focused primarily upon the needs, rights, and interests of the parties. The mediator uses a wide variety of techniques to guide the process in a constructive direction and to help the parties find their optimal solution. A mediator is facilitative in that they manage the interaction between parties and facilitates open communication. Mediation is also evaluative in that the mediator analyzes issues and relevant norms ("reality-testing"), while refraining from providing prescriptive advice to the parties.
The Australian Industrial Relations Commission (AIRC), known from 1956 to 1973 as the Commonwealth Conciliation and Arbitration Commission and from 1973 to 1988 as the Australian Conciliation and Arbitration Commission, was a tribunal with powers under the Workplace Relations Act 1996 that existed from 1956 until 2010. It was the central institution of Australian labour law. The AIRC replaced a previous system of industrial courts, which broadly speaking, was engaged in the same functions, but with superior independence and powers.
The Federal Mediation and Conciliation Service (FMCS), founded in 1947, is an independent agency of the United States government, and the nation's largest public agency for dispute resolution and conflict management, providing mediation services and related conflict prevention and resolution services in the private, public, and federal sectors. FMCS is tasked with mediating labor disputes around the country; it provides training and relationship development programs for management and unions as part of its role in promoting labor-management peace and cooperation. The Agency also provides mediation, conflict prevention, and conflict management services outside the labor context for federal agencies and the programs they operate. The FMCS headquarters is located in Washington, D.C., with other offices across the country.
The International Centre for Settlement of Investment Disputes (ICSID) is an international arbitration institution established in 1966 for legal dispute resolution and conciliation between international investors and States. ICSID is part of and funded by the World Bank Group, headquartered in Washington, D.C., in the United States. It is an autonomous, multilateral specialized institution to encourage international flow of investment and mitigate non-commercial risks by a treaty drafted by the International Bank for Reconstruction and Development's executive directors and signed by member countries. As of May 2016, 153 contracting member states agreed to enforce and uphold arbitral awards in accordance with the ICSID Convention.
The Advisory, Conciliation and Arbitration Service (Acas) is a non-departmental public body of the Government of the United Kingdom. Its purpose is to improve organisations and working life through the promotion and facilitation of strong industrial relations practice. Acas provides employment law and employment relations advice for employers and employees through its website and helpline. It also offers dispute resolution services such as arbitration or mediation, although the service is perhaps best known for its collective conciliation function – that is resolving disputes between groups of employees or workers, often represented by a trade union, and their employers.
New South Wales v Commonwealth is a landmark decision of the High Court of Australia, which held that the federal government's WorkChoices legislation was a valid exercise of federal legislative power under the Constitution of Australia. In essence, the majority found the Constitution's corporations power capable of sustaining the legislative framework, while the conciliation and arbitration and territories powers were also seen as supporting parts of the law. Furthermore, the majority also held that the legislation permissibly limited State powers and did not interfere with State constitutions or functioning. A minority dissented.
Trade unions in South Africa has a history dating back to the 1880s. From the beginning unions could be viewed as a reflection of the racial disunity of the country, with the earliest unions being predominantly for white workers. Through the turbulent years of 1948–1991 trade unions played an important part in developing political and economic resistance, and eventually were one of the driving forces in realising the transition to an inclusive democratic government.
The Court of Arbitration was the first court in New South Wales, Australia, which dealt exclusively with industrial relations disputes in the early twentieth century. Justice Lance Wright claims that it perhaps was the first court of its type in the world. The court was unique at that time as it was the first court of its type to deal with labour relations between employer and employees on a compulsory basis. Previous arbitration measures between employer and employee had been on a voluntary basis or had been based on the criminal justice system through the use of criminal penalties. The conventional economic model is that both employer and employee enjoy equal bargaining power to set wages and conditions. This asserts that both parties are able to agree on a fair market price for the cost of labour free from distortions. However, where employers or employees group together, these outcomes can be distorted particularly in “boom” or “bust” economic conditions. The purpose of the court was to change the manner in which employers and employees negotiated pay and conditions. It was an attempt to reduce the power imbalances between employer groups or employee unions that arose from using collective bargaining, and the resulting use of that market power to influence wages, and also to reduce the threat of lockout or strikes to achieve those ends.
The Commonwealth Conciliation and Arbitration Act 1904 (Cth) was an Act of the Parliament of Australia, which established the Commonwealth Court of Conciliation and Arbitration, besides other things, and sought to introduce the rule of law in industrial relations in Australia. The Act received royal assent on 15 December 1904.
Frank E. A. Sander was an American professor emeritus and associate dean of Harvard Law School. He pioneered the field of alternative dispute resolution and is widely credited with being a father of the field in the United States as a result of his paper, The Varieties of Dispute Processing, presented at the Pound Conference in 1976 in Minneapolis, Minnesota. Sander's book, Dispute Resolution: Negotiation, Mediation, and Other Processes, which he coauthored with Stephen B. Goldberg, Nancy H. Rogers, and Sarah Rudolph Cole, is used in law schools throughout the United States.
Alternative dispute resolution (ADR), or external dispute resolution (EDR), typically denotes a wide range of dispute resolution processes and techniques that parties can use to settle disputes with the help of a third party. They are used for disagreeing parties who cannot come to an agreement short of litigation. However, ADR is also increasingly being adopted as a tool to help settle disputes within the court system.
In labour law, unfair dismissal is an act of employment termination made without good reason or contrary to the country's specific legislation.
South African labour law regulates the relationship between employers, employees and trade unions in the Republic of South Africa.
Quick Reference Guide on Arbitration, Conciliation & Mediation is a book authored by Vishnu S Warrier published by Lexis Nexis in 2015.
Australian Boot Trade Employees Federation v Whybrow & Co, commonly known as Whybrow's case or the Boot Trades case, was the third of a series of decisions of the High Court of Australia in 1910 concerning the boot manufacturing industry and the role of the Commonwealth Court of Conciliation and Arbitration in preventing and settling industrial disputes. In doing so the High Court considered the constitutional power of the Federal Parliament to provide for common rule awards and the jurisdiction of the High Court to grant prohibition against the Arbitration Court. The majority held in Whybrow that the Arbitration Court could not make an award that was inconsistent with a State law, but that different minimum wages were not inconsistent as it was possible to obey both laws. In Whybrow the High Court established the doctrine of ambit, with the emphasis on the precise claim made and refused, and the practice with respect to "paper disputes" being treated "prima facie as genuine and real", with the majority holding that the High Court had power to order prohibition to correct jurisdictional error as part of its original jurisdiction. Finally in Whybrow the High Court unanimously held that the Federal Parliament had no constitutional power to provide for common rule awards.
The ADR Institute of Canada (ADRIC), is a non-profit organization that offers alternative dispute resolution services to its members and the public across the country. It is one of the leading authorities on ADR in Canada, offering highly respected professional designations for both mediation and arbitration, with plans for a mediation and arbitration (Med-Arb) designation in the works. ADRIC has also created an established set of ADR rules and codes, outlining the principles by which its affiliated ADR practitioners commit themselves to following. Beyond promoting ADR and networking and training individuals in ADR practices, ADRIC presides as the national body of the seven regional affiliate bodies of the ADR Institutes in Canada:
Union for the Local Employees in Missions Accredited to South Africa (ULEMASA) is a trade union formed by local employees working for diplomatic missions in South Africa.
Kylie v Commission for Conciliation, Mediation and Arbitration and Others is an important decision in South African labour law, handed down on 26 May 2010 in the Labour Appeal Court of South Africa. Writing for a unanimous court, Judge of Appeal Dennis Davis held that the Labour Relations Act, 1995 applied to sex workers and that the Commission for Conciliation, Mediation and Arbitration therefore had jurisdiction to hear a dispute between a sex worker and the brothel that had fired her. Although the court affirmed that sex workers' employment contracts were legally unenforceable, it held that sex workers were nonetheless protected by the labour rights granted in section 23 of the Constitution of South Africa.
References
- ↑ Bernikow, Ronald (2007). "Ten years of the CCMA – An assessment for labour". Law, Democracy & Development. 11 (1): 13–24. ISSN 2077-4907.
- 1 2 "About Us". CCMA. Retrieved 3 February 2024.
- 1 2 Benjamin, Paul (2009). "Conciliation, Arbitration and Enforcement: The CCMA's Achievements and Challenges". Industrial Law Journal. 30: 26.
- ↑ Ferreira, G. (2004). "The Commission for Conciliation, Mediation and Arbitration: its effectiveness in dispute resolution in labour relations: review article". Politeia. 23: 73–85. S2CID 56067096.
- ↑ Bendeman, H (18 October 2007). "An analysis of the problems of the Labour Dispute Resolution System in South Africa". African Journal on Conflict Resolution. 6 (1). doi:10.4314/ajcr.v6i1.39399. ISSN 1562-6997.