Monthly Archives: ខែ​កុម្ភៈ 2012

Arbitration(មជ្ឈត្តការ)

Vannara Chin Law ជិន វណ្ណារ៉ា នីតិជំនួញ

មជ្ឈត្តការ

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Arbitration

http://en.wikipedia.org/wiki/Arbitration

From Wikipedia, the free encyclopedia
Arbitration, a form of alternative dispute resolution (ADR), is a legal technique for the resolution of disputesoutside the courts, where the parties to a dispute refer it to one or more persons (the “arbitrators”, “arbiters” or “arbitral tribunal“), by whose decision (the “award“) they agree to be bound. It is a settlement technique in which a third party reviews the case and imposes a decision that is legally binding for both sides.[1] Other forms of ADR include mediation[2] (a form of settlement negotiation facilitated by a neutral third party) and non-binding resolution by experts. Arbitration is often used for the resolution of commercial disputes, particularly in the context of international commercial transactions. The use of arbitration is also frequently employed in consumer and employment matters, where arbitration may be mandated by the terms of employment or commercial contracts.
Arbitration can be either voluntary or mandatory (although mandatory arbitration can only come from a statute or from a contract that is voluntarily entered into, where the parties agree to hold all disputes to arbitration, without knowing, specifically, what disputes will ever occur) and can be either binding or non-binding. Non-binding arbitration is, on the surface, similar to mediation. However, the principal distinction is that whereas a mediator will try to help the parties find a middle ground on which to compromise, the (non-binding) arbitrator remains totally removed from the settlement process and will only give a determination of liability and, if appropriate, an indication of the quantum of damages payable.
Arbitration is a proceeding in which a dispute is resolved by an impartial adjudicator whose decision the parties to the dispute have agreed, or legislation has decreed, will be final and binding. Arbitration is not the same as:

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[edit]Advantages and disadvantages

Parties often seek to resolve their disputes through arbitration because of a number of perceived potential advantages over judicial proceedings:
  • when the subject matter of the dispute is highly technical, arbitrators with an appropriate degree of expertise can be appointed (as one cannot “choose the judge” in litigation)
  • arbitration is often faster than litigation in court[citation needed]
  • arbitration can be cheaper and more flexible for businesses[citation needed]
  • arbitral proceedings and an arbitral award are generally non-public, and can be made confidential[5]
  • in arbitral proceedings the language of arbitration may be chosen, whereas in judicial proceedings the official language of the country of the competent court will be automatically applied
  • because of the provisions of the New York Convention 1958, arbitration awards are generally easier to enforce in other nations than court judgments
  • in most legal systems there are very limited avenues for appeal of an arbitral award, which is sometimes an advantage because it limits the duration of the dispute and any associated liability
Some of the disadvantages include:
  • arbitration may become highly complex[citation needed]
  • arbitration may be subject to pressures from powerful law firms representing the stronger and wealthier party[citation needed]
  • arbitration agreements are sometimes contained in ancillary agreements, or in small print in other agreements, and consumers and employees often do not know in advance that they have agreed to mandatory binding pre-dispute arbitration by purchasing a product or taking a job
  • if the arbitration is mandatory and binding, the parties waive their rights to access the courts and to have a judge or jury decide the case
  • in some arbitration agreements, the parties are required to pay for the arbitrators, which adds an additional layer of legal cost that can be prohibitive, especially in small consumer disputes[citation needed]
  • in some arbitration agreements and systems, the recovery of attorneys’ fees is unavailable, making it difficult or impossible for consumers or employees to get legal representation[citation needed]; however most arbitration codes and agreements provide for the same relief that could be granted in court
  • if the arbitrator or the arbitration forum depends on the corporation for repeat business, there may be an inherent incentive to rule against the consumer or employee[citation needed]
  • there are very limited avenues for appeal, which means that an erroneous decision cannot be easily overturned
  • although usually thought to be speedier, when there are multiple arbitrators on the panel, juggling their schedules for hearing dates in long cases can lead to delays
  • in some legal systems, arbitrary awards have fewer enforcement options than judgments; although in the United States arbitration awards are enforced in the same manner as court judgments and have the same effect
  • arbitrators are generally unable to enforce interlocutory measures against a party, making it easier for a party to take steps to avoid enforcement of member or a small group of members in arbitration due to increasing legal fees, without explaining to the members the adverse consequences of an unfavorable ruling
  • rule of applicable law is not necessarily binding on the arbitrators, although they cannot disregard the law[citation needed]
  • discovery may be more limited in arbitration or entirely nonexistent
  • the potential to generate billings by attorneys may be less than pursuing the dispute through trial
  • unlike court judgments, arbitration awards themselves are not directly enforceable. A party seeking to enforce an arbitration award must resort to judicial remedies, called an action to “confirm” an award
  • although grounds for attacking an arbitration award in court are limited, efforts to confirm the award can be fiercely fought[citation needed], thus necessitating huge legal expenses that negate the perceived economic incentive to arbitrate the dispute in the first place.

[edit]Arbitrability

By their nature, the subject matter of some disputes is not capable of arbitration. In general, two groups of legal procedures cannot be subjected to arbitration:
  • Procedures which necessarily lead to a determination which the parties to the dispute may not enter into an agreement upon:[6] Some court procedures lead to judgments which bind all members of the general public, or public authorities in their capacity as such, or third parties, or which are being conducted in the public interest. For example, until the 1980s, antitrust matters were not arbitrable in the United States.[7] Matters relating to crimesstatus and family law are generally not considered to be arbitrable, as the power of the parties to enter into an agreement upon these matters is at least restricted. However, most other disputes that involve private rights between two parties can be resolved using arbitration. In some disputes, parts of claims may be arbitrable and other parts not. For example, in a dispute over patent infringement, a determination of whether a patent has been infringed could be adjudicated upon by an arbitration tribunal, but the validity of a patent could not: As patents are subject to a system of public registration, an arbitral panel would have no power to order the relevant body to rectify any patent registration based upon its determination.
  • Some legal orders exclude or restrict the possibility of arbitration for reasons of the protection of weaker members of the public, e.g. consumers. Examples: German law excludes disputes over the rental of living space from any form of arbitration[8], while arbitration agreements with consumers are only considered valid if they are signed by either party,[9] and if the signed document does not bear any other content than the arbitration agreement.[10]

[edit]Arbitration agreement

See also: Arbitration clause
In theory, arbitration is a consensual process; a party cannot be forced to arbitrate a dispute unless he agrees to do so. In practice, however, many fine-print arbitration agreements are inserted in situations in which consumers and employees have no bargaining power. Moreover, arbitration clauses are frequently placed within sealed users’ manuals within products, within lengthy click-through agreements on websites, and in other contexts in which meaningful consent is not realistic. Such agreements are generally divided into two types:
  • agreements which provide that, if a dispute should arise, it will be resolved by arbitration. These will generally be normal contracts, but they contain anarbitration clause
  • agreements which are signed after a dispute has arisen, agreeing that the dispute should be resolved by arbitration (sometimes called a “submission agreement”)
The former is the far more prevalent type of arbitration agreement. Sometimes, legal significance attaches to the type of arbitration agreement. For example, in certain Commonwealth countries, it is possible to provide that each party should bear their own costs in a conventional arbitration clause, but not in a submission agreement.
In keeping with the informality of the arbitration process, the law is generally keen to uphold the validity of arbitration clauses even when they lack the normal formal language associated with legal contracts. Clauses which have been upheld include:
  • “arbitration in London – English law to apply”[11]
  • “suitable arbitration clause”[12]
  • “arbitration, if any, by ICC Rules in London”[13]
The courts have also upheld clauses which specify resolution of disputes other than in accordance with a specific legal system. These include provision indicating:
  • that the arbitrators “must not necessarily judge according to the strict law but as a general rule ought chiefly to consider the principles of practical business”[14]
  • “internationally accepted principles of law governing contractual relations”[15]
Agreements to refer disputes to arbitration generally have a special status in the eyes of the law. For example, in disputes on a contract, a common defence is to plead the contract is void and thus any claim based upon it fails. It follows that if a party successfully claims that a contract is void, then each clause contained within the contract, including the arbitration clause, would be void. However, in most countries, the courts have accepted that:
  1. a contract can only be declared void by a court or other tribunal; and
  2. if the contract (valid or otherwise) contains an arbitration clause, then the proper forum to determine whether the contract is void or not, is the arbitration tribunal.[16]
Arguably, either position is potentially unfair; if a person is made to sign a contract under duress, and the contract contains an arbitration clause highly favourable to the other party, the dispute may still referred to that arbitration tribunal.[citation needed] Conversely a court may be persuaded that the arbitration agreement itself is void having been signed under duress. However, most courts will be reluctant to interfere with the general rule which does allow for commercial expediency; any other solution (where one first had to go to court to decide whether one had to go to arbitration) would be self defeating.

[edit]Sources of law

States regulate arbitration through a variety of laws. The main body of law applicable to arbitration is normally contained either in the national Private International Law Act (as is the case in Switzerland) or in a separate law on arbitration (as is the case in England). In addition to this, a number of national procedural laws may also contain provisions relating to arbitration.
By far the most important international instrument on arbitration law is the 1958 New York Convention on Recognition and Enforcement of Foreign Arbitral Awards. Some other relevant international instruments are:
  • The Geneva Protocol of 1923
  • The Geneva Convention of 1927
  • The European Convention of 1961
  • The Washington Convention of 1965 (governing settlement of international investment disputes)
  • The UNCITRAL Model Law (providing a model for a national law of arbitration)
  • The UNCITRAL Arbitration Rules (providing a set of rules for an ad hoc arbitration)

[edit]Arbitral tribunal

The term arbitral tribunal is used to denote the arbitrator or arbitrators sitting to determine the dispute. The composition of the arbitral tribunal can vary enormously, with either a sole arbitrator sitting, two or more arbitrators, with or without a chairman or umpire, and various other combinations.
In most jurisdictions, an arbitrator enjoys immunity from liability for anything done or omitted whilst acting as arbitrator unless the arbitrator acts in bad faith.
Arbitrations are usually divided into two types:
  • ad hoc arbitrations and administered arbitrations.
In ad hoc arbitrations, the arbitral tribunals are appointed by the parties or by an appointing authority chosen by the parties. After the tribunal has been formed, the appointing authority will normally have no other role and the arbitation will be managed by the tribunal.
In administered arbitration, the arbitration will be administered by a professional arbitration institution providing arbitration services, such as the LCIA in London, or the ICC in Paris, or the American Arbitration Association in the United States. Normally the arbitration institution also will be the appointing authority.
Arbitration institutions tend to have their own rules and procedures, and may be more formal. They also tend to be more expensive, and, for procedural reasons, slower.[17]

[edit]Duties of the tribunal

The duties of a tribunal will be determined by a combination of the provisions of the arbitration agreement and by the procedural laws which apply in the seat of the arbitration. The extent to which the laws of the seat of the arbitration permit “party autonomy” (the ability of the parties to set out their own procedures and regulations) determines the interplay between the two.
However, in almost all countries the tribunal owes several non-derogable duties. These will normally be:
  • to act fairly and impartially between the parties, and to allow each party a reasonable opportunity to put their case and to deal with the case of their opponent (sometimes shortened to: complying with the rules of “natural justice“); and
  • to adopt procedures suitable to the circumstances of the particular case, so as to provide a fair means for resolution of the dispute.[18]

[edit]Arbitral awards

Although arbitration awards are characteristically an award of damages against a party, in many jurisdictions tribunals have a range of remedies that can form a part of the award. These may include:
  1. payment of a sum of money (conventional damages)
  2. the making of a “declaration” as to any matter to be determined in the proceedings
  3. in some[who?] jurisdictions, the tribunal may have the same power as a court to:
    1. order a party to do or refrain from doing something (“injunctive relief“)
    2. to order specific performance of a contract
    3. to order the rectification, setting aside or cancellation of a deed or other document.
  4. In other jurisdictions, however, unless the parties have expressly granted the arbitrators the right to decide such matters, the tribunal’s powers may be limited to deciding whether a party is entitled to damages. It may not have the legal authority to order injunctive relief, issue a declaration, or rectify a contract, such powers being reserved to the exclusive jurisdiction of the courts.

[edit]Enforcement of arbitration awards

One of the reasons that arbitration is so popular in international trade as a means of dispute resolution, is that it is often easier to enforce an arbitration award in a foreign country than it is to enforce a judgment of the court.
Under the New York Convention 1958, an award issued a contracting state can generally be freely enforced in any other contracting state, only subject to certain, limited defenses.
Only foreign arbitration awards can be subject to recognition and enforcement pursuant to the New York Convention. An arbitral decision is foreign where the award was made in a state other than the state of recognition or where foreign procedural law was used.[19]
Virtually every significant commercial country in the world is a party to the Convention, but relatively few countries have a comprehensive network for cross-border enforcement of judgments of the court.
The other characteristic of cross-border enforcement of arbitration awards that makes them appealing to commercial parties is that they are not limited to awards of damages. Whereas in most countries only monetary judgments are enforceable in the cross-border context, no such restrictions are imposed on arbitration awards and so it is theoretically possible (although unusual in practice) to obtain an injunction or an order for specific performance in an arbitration proceeding which could then be enforced in another New York Convention contracting state.
The New York Convention is not actually the only treaty dealing with cross-border enforcement of arbitration awards. The earlier Geneva Convention on the Execution of Foreign Arbitral Awards 1927 [1] remains in force, but the success of the New York Convention means that the Geneva Convention is rarely utilized in practice.
Article V of the New York Convention provides an exhaustive list of grounds on which enforcement can be challenged. These are generally narrowly construed by the courts in arbitration centres to uphold the pro-enforcement bias of the Convention.

[edit]Arbitration with sovereign governments

Certain international conventions exist in relation to the enforcement of awards against states.
  • The Washington Convention 1965 relates to settlement of investment disputes between states and citizens of other countries. The Convention created theInternational Centre for Settlement of Investment Disputes (or ICSID). Compared to other arbitration institutions, relatively few awards have been rendered under ICSID.[20]
  • The Algiers Declaration of 1981 established the Iran-US Claims Tribunal to adjudicate claims of American corporations and individuals in relation to expropriated property during the Islamic revolution in Iran in 1979. The tribunal has not been a notable success, and has even been held by an English court to be void under its own governing law.[21]

[edit]Challenge

Generally speaking, by their nature, arbitration proceedings tend not to be subject to appeal, in the ordinary sense of the word.
However, in most countries, the court maintains a supervisory role to set aside awards in extreme cases, such as fraud or in the case of some serious legal irregularity on the part of the tribunal.
Only domestic arbitral awards[citation needed] (i.e. those where the seat of arbitration is located in the same state as the court seised) are subject to set aside procedure.
In American arbitration law there exists a small but significant body of case law which deals with the power of the courts to intervene where the decision of an arbitrator is in fundamental disaccord with the applicable principles of law or the contract.[22]
Unfortunately there is little agreement amongst the different American judgments and textbooks as to whether such a separate doctrine exists at all, or the circumstances in which it would apply. There does not appear to be any recorded judicial decision in which it has been applied. However, conceptually, to the extent it exists, the doctrine would be an important derogation from the general principle that awards are not subject to review by the courts.

[edit]Costs

In many legal systems – both common law and civil law – it is normal practice for the courts to award legal costs against a losing party, with the winner becoming entitled to recover an approximation of what it spent in pursuing its claim (or in defense of a claim). The United States is a notable exception to this rule, as except for certain extreme cases, a prevailing party in a US legal proceeding does not become entitled to recoup its legal fees from the losing party.
Like the courts, arbitral tribunals generally have the same power to award costs in relation to the determination of the dispute. In international arbitration as well as domestic arbitrations governed by the laws of countries in which courts may award costs against a losing party, the arbitral tribunal will also determine the portion of the arbitrators’ fees that the losing party is required to bear.

[edit]Nomenclature

As methods of dispute resolution, arbitration procedure can be varied to suit the needs of the parties. Certain specific “types” of arbitration procedure have developed, particularly in North America.
  • Judicial Arbitration is, usually, not arbitration at all, but merely a court process which refers to itself as arbitration, such as small claims arbitration before the County Courts in the United Kingdom.[3]
  • High-Low Arbitration, or Bracketed Arbitration, is an arbitration wherein the parties to the dispute agree in advance the limits within which the arbitral tribunal must render its award. It is only generally useful where liability is not in dispute, and the only issue between the party is the amount of compensation. If the award is lower than the agreed minimum, then the defendant only need pay the lower limit; if the award is higher than the agreed maximum, the claimant will receive the upper limit. If the award falls within the agreed range, then the parties are bound by the actual award amount. Practice varies as to whether the figures may or may not be revealed to the tribunal, or whether the tribunal is even advised of the parties’ agreement.
  • Binding Arbitration is a form of arbitration where the decision by the arbitrator is legally binding and enforceable, similar to a court order.
  • Non-Binding Arbitration is a process which is conducted as if it were a conventional arbitration, except that the award issued by the tribunal is not binding on the parties, and they retain their rights to bring a claim before the courts or other arbitration tribunal; the award is in the form of an independent assessment of the merits of the case, designated to facilitate an out-of-court settlement. State law may automatically make a non-binding arbitration binding, if, for example, the non-binding arbitration is court-ordered, and no party requests a trial de novo (as if the arbitration had not been held).[23]
  • Pendulum Arbitration refers to a determination in industrial disputes where an arbitrator has to resolve a claim between a trade union and management by making a determination of which of the two sides has the more reasonable position. The arbitrator must choose only between the two options, and cannot split the difference or select an alternative position. It was initiated in Chile in 1979.
  • Night Baseball Arbitration is a variation of baseball arbitration where the figures are not revealed to the arbitration tribunal. The arbitrator will determinate the quantum of the claim in the usual way, and the parties agree to accept and be bound by the figure which is closest to the tribunal’s award.
Such forms of “Last Offer Arbitration” can also be combined with mediation to create MEDALOA hybrid processes (Mediation followed by Last Offer Arbitration).[24]

[edit]See also

[edit]Notes

Negotiation

http://en.wikipedia.org/wiki/Negotiation

From Wikipedia, the free encyclopedia

Treaty of Trianon negotiations

Negotiation is a dialogue between two or more people or parties, intended to reach an understanding, resolve point of difference, or gain advantage in outcome of dialogue, to produce an agreement upon courses of action, to bargain for individual or collective advantage, to craft outcomes to satisfy various interests of two people/parties involved in negotiation process. Negotiation is a process where each party involved in negotiating tries to gain an advantage for themselves by the end of the process. Negotiation is intended to aim at compromise.
Negotiation occurs in business, non-profit organizations, government branches, legal proceedings, among nations and in personal situations such as marriage, divorce, parenting, and everyday life. The study of the subject is called negotiation theory. Professional negotiators are often specialized, such as union negotiatorsleverage buyout negotiatorspeace negotiatorshostage negotiators, or may work under other titles, such as diplomatslegislators or brokers.

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[edit]Etymology

The word “negotiation” originated from the Latin expression, “negotiatus”, past participle of negotiare which means “to carry on business”. “Negotium” means literally “not leisure”.

[edit]Approaches to negotiation

Negotiation typically manifests itself with a trained negotiator acting on behalf of a particular organization or position. It can be compared to mediation where a neutral third party listens to each side’s arguments and attempts to help craft an agreement between the parties. It is also related to arbitration which, as with a legal proceeding, both sides make an argument as to the merits of their “case” and then the arbitrator decides the outcome for both parties. There are two opposite types of negotiation: Integrative and Distributive.

[edit]Distributive Negotiation

The term distributive means; there is a giving out; or the scattering of things. By its mere nature, there is a limit or finite amount in the thing being distributed or divided amongst the people involved. Hence, this type of negotiation is often referred to as ‘The Fixed Pie’. There is only so much to go around, but the proportion to be distributed is limited but also variable. A distributive negotiation usually involves people who have never had a previous interactive relationship, nor are they likely to do so again in the near future. Simple everyday examples would be buying a car or a house.

[edit]Integrative negotiation

The word integrative means to join several parts into a whole. Conceptually, this implies some cooperation, or a joining of forces to achieve something together. Usually involves a higher degree of trust and a forming of a relationship. Both parties want to walk away feeling they’ve achieved something which has value by getting what each wants. Ideally, it is a twofold process. Integrative negotiation process generally involves some form or combination of making value for value concessions, in conjunction with creative problem solving. Generally, this form of negotiation is looking down the road, to them forming a long term relationship to create mutual gain. It is often described as the win-win scenario.
There are many different ways to segment negotiation to gain a greater understanding of the essential parts. One view of negotiation involves three basic elements: processbehavior and substance. The process refers to how the parties negotiate: the context of the negotiations, the parties to the negotiations, the tactics used by the parties, and the sequence and stages in which all of these play out. Behavior refers to the relationships among these parties, the communication between them and the styles they adopt. The substance refers to what the parties negotiate over: the agenda, the issues (positions and – more helpfully – interests), the options, and the agreement(s) reached at the end.
Another view of negotiation comprises 4 elements: strategyprocess and tools, and tactics. Strategy comprises the top level goals – typically including relationship and the final outcome. Processes and tools include the steps that will be followed and the roles taken in both preparing for and negotiating with the other parties. Tactics include more detailed statements and actions and responses to others’ statements and actions. Some add to this persuasion and influence, asserting that these have become integral to modern day negotiation success, and so should not be omitted.
Skilled negotiators may use a variety of tactics ranging from negotiation hypnosis, to a straight forward presentation of demands or setting of preconditions to more deceptive approaches such as cherry picking. Intimidation and salami tactics may also play a part in swaying the outcome of negotiations.
Another negotiation tactic is bad guy/good guy. Bad guy/good guy tactic is when one negotiator acts as a bad guy by using anger and threats. The other negotiator acts as a good guy by being considerate and understanding. The good guy blames the bad guy for all the difficulties while trying to get concessions and agreement from the opponent.[1]
When a party pretends to negotiate, but secretly has no intention of compromising, the negotiator is considered to be negotiating in bad faith.

[edit]The advocate’s approach

In the advocacy approach, a skilled negotiator usually serves as advocate for one party to the negotiation and attempts to obtain the most favorable outcomes possible for that party. In this process the negotiator attempts to determine the minimum outcome(s) the other party is (or parties are) willing to accept, then adjusts their demands accordingly. A “successful” negotiation in the advocacy approach is when the negotiator is able to obtain all or most of the outcomes their party desires, but without driving the other party to permanently break off negotiations, unless the best alternative to a negotiated agreement (BATNA) is acceptable.
Traditional negotiating is sometimes called win-lose because of the assumption of a fixed “pie”, that one person’s gain results in another person’s loss. This is not true, however, unless only one issue needs to be resolved, such as a price in a simple sales negotiation.
Getting to YES was published by Roger Fisher and William Ury as part of the Harvard negotiation project. The book’s approach, referred to as Principled Negotiation, is also sometimes called mutual gains bargaining. The Mutual Gains Approach has been effectively applied in environmental situations (seeLawrence Susskind and Adil Najam) as well as labor relations where the parties (such as management and a labor union) frame the negotiation as “problem solving”. If multiple issues are discussed, differences in the parties’ preferences make win-win negotiation possible. For example, in a labor negotiation, the union might prefer job security over wage gains.
If the employers have opposite preferences, a trade is possible that is beneficial to both parties. Such a negotiation is therefore not an adversarial zero-sumgame. Principled Negotiation method consists of four main steps: separating the people from the problem, focus on interests, not positions, generating a variety of possibilities before deciding what to do and insisting that the result be based on some objective standard.[2]
There are a tremendous number of other scholars who have contributed to the field of negotiation, including Holly Schroth and Timothy Dayonot at UC Berkeley,Gerard E. Watzke at Tulane University, Sara Cobb at George Mason University, Len Riskin at the University of Missouri, Howard Raiffa at Harvard, Robert McKersie and Lawrence Susskind at MIT, and Adil Najam and Jeswald Salacuse at The Fletcher School of Law and Diplomacy.[citation needed]and John D. Males.

[edit]Other negotiation styles

Shell identified five styles/responses to negotiation.[3] Individuals can often have strong dispositions towards numerous styles; the style used during a negotiation depends on the context and the interests of the other party, among other factors. In addition, styles can change over time.
  1. Accommodating: Individuals who enjoy solving the other party’s problems and preserving personal relationships. Accommodators are sensitive to the emotional states, body language, and verbal signals of the other parties. They can, however, feel taken advantage of in situations when the other party places little emphasis on the relationship.
  2. Avoiding: Individuals who do not like to negotiate and don’t do it unless warranted. When negotiating, avoiders tend to defer and dodge the confrontational aspects of negotiating; however, they may be perceived as tactful and diplomatic.
  3. Collaborating: Individuals who enjoy negotiations that involve solving tough problems in creative ways. Collaborators are good at using negotiations to understand the concerns and interests of the other parties. They can, however, create problems by transforming simple situations into more complex ones.
  4. Competing: Individuals who enjoy negotiations because they present an opportunity to win something. Competitive negotiators have strong instincts for all aspects of negotiating and are often strategic. Because their style can dominate the bargaining process, competitive negotiators often neglect the importance of relationships.
  5. Compromising: Individuals who are eager to close the deal by doing what is fair and equal for all parties involved in the negotiation. Compromisers can be useful when there is limited time to complete the deal; however, compromisers often unnecessarily rush the negotiation process and make concessions too quickly.

[edit]Adversary or Partner?

Clearly, these two basically different ways of negotiating will require different approaches. To ignore this can be devastating for the result, but it all too often happens. Because in the distributive approach each negotiator is battling for the largest possible piece of the pie, it may be quite appropriate – within certain limits – to regard the other side more as an adversary than a partner and to take a somewhat harder line. This would however be less appropriate if the idea were to hammer out an arrangement that is in the best interest of both sides. If both win, it’s only of secondary importance which one has the greater advantage. A good agreement is not one with maximum gain, but optimum gain. This does not by any means suggest that we should give up our own advantage for nothing. But a cooperative attitude will regularly pay dividends. What is gained is not at the expense of the other, but with him.[4]

[edit]Bad faith negotiation

Bad faith is a concept in negotiation theory whereby parties pretend to reason to reach settlement, but have no intention to do so, for example, one political party may pretend to negotiate, with no intention to compromise, for political effect.[5][6]

[edit]Inherent bad faith model in international relations and political psychology

Bad faith in political science and political psychology refers to negotiating strategies in which there is no real intention to reach compromise, or a model ofinformation processing.[7] The “inherent bad faith model” of information processing is a theory in political psychology that was first put forth by Ole Holsti to explain the relationship between John Foster Dulles’ beliefs and his model of information processing.[8] It is the most widely studied model of one’s opponent.[9]A state is presumed to be implacably hostile, and contra-indicators of this are ignored. They are dismissed as propaganda ploys or signs of weakness. Examples are John Foster Dulles’ position regarding the Soviet Union, or Hamas‘s position on the state of Israel.[10][neutrality is disputed]

[edit]Emotion in negotiation

Emotions play an important part in the negotiation process, although it is only in recent years that their effect is being studied. Emotions have the potential to play either a positive or negative role in negotiation. During negotiations, the decision as to whether or not to settle, rests in part on emotional factors. Negative emotions can cause intense and even irrational behavior, and can cause conflicts to escalate and negotiations to break down, but may be instrumental in attaining concessions. On the other hand, positive emotions often facilitate reaching an agreement and help to maximize joint gains, but can also be instrumental in attaining concessions. Positive and negative discrete emotions can be strategically displayed to influence task and relational outcomes [11] and may play out differently across cultural boundaries.[12]

[edit]Affect effect

Dispositional affects affect the various stages of the negotiation process: which strategies are planned to be used, which strategies are actually chosen,[13] the way the other party and his or her intentions are perceived,[14] their willingness to reach an agreement and the final negotiated outcomes.[15] Positive affectivity (PA) and negative affectivity (NA) of one or more of the negotiating sides can lead to very different outcomes.

[edit]Positive affect in negotiation

Even before the negotiation process starts, people in a positive mood have more confidence,[16] and higher tendencies to plan to use a cooperative strategy.[13]During the negotiation, negotiators who are in a positive mood tend to enjoy the interaction more, show less contentious behavior, use less aggressive tactics[17] and more cooperative strategies.[13] This in turn increases the likelihood that parties will reach their instrumental goals, and enhance the ability to find integrative gains.[18] Indeed, compared with negotiators with negative or natural affectivity, negotiators with positive affectivity reached more agreements and tended to honor those agreements more.[13] Those favorable outcomes are due to better decision making processes, such as flexible thinking, creative problem solving, respect for others’ perspectives, willingness to take risks and higher confidence.[19] Post negotiation positive affect has beneficial consequences as well. It increases satisfaction with achieved outcome and influences one’s desire for future interactions.[19] The PA aroused by reaching an agreement facilitates the dyadic relationship, which result in affective commitment that sets the stage for subsequent interactions.[19]
PA also has its drawbacks: it distorts perception of self performance, such that performance is judged to be relatively better than it actually is.[16] Thus, studies involving self reports on achieved outcomes might be biased.

[edit]Negative affect in negotiation

Negative affect has detrimental effects on various stages in the negotiation process. Although various negative emotions affect negotiation outcomes, by far the most researched is anger. Angry negotiators plan to use more competitive strategies and to cooperate less, even before the negotiation starts.[13] These competitive strategies are related to reduced joint outcomes. During negotiations, anger disrupts the process by reducing the level of trust, clouding parties’ judgment, narrowing parties’ focus of attention and changing their central goal from reaching agreement to retaliating against the other side.[17] Angry negotiators pay less attention to opponent’s interests and are less accurate in judging their interests, thus achieve lower joint gains.[20] Moreover, because anger makes negotiators more self-centered in their preferences, it increases the likelihood that they will reject profitable offers.[17] Opponents who really get angry (or cry, or otherwise lose control) are more likely to make errors:make sure they are in your favor.[1] Anger does not help in achieving negotiation goals either: it reduces joint gains[13] and does not help to boost personal gains, as angry negotiators do not succeed in claiming more for themselves.[20] Moreover, negative emotions lead to acceptance of settlements that are not in the positive utility function but rather have a negative utility.[21] However, expression of negative emotions during negotiation can sometimes be beneficial: legitimately expressed anger can be an effective way to show one’s commitment, sincerity, and needs.[17] Moreover, although NA reduces gains in integrative tasks, it is a better strategy than PA in distributive tasks (such as zero-sum).[19] In his work on negative affect arousal and white noise, Seidner found support for the existence of a negative affect arousal mechanism through observations regarding the devaluation of speakers from other ethnic origins.” Negotiation may be negatively affected, in turn, by submerged hostility toward an ethnic or gender group.[22]

[edit]Conditions for emotion affect in negotiation

Research indicates that negotiator’s emotions do not necessarily affect the negotiation process. Albarracın et al. (2003) suggested that there are two conditions for emotional affect, both related to the ability (presence of environmental or cognitive disturbances) and the motivation:
  1. Identification of the affect: requires high motivation, high ability or both.
  2. Determination that the affect is relevant and important for the judgment: requires that either the motivation, the ability or both are low.
According to this model, emotions are expected to affect negotiations only when one is high and the other is low. When both ability and motivation are low the affect will not be identified, and when both are high the affect will be identify but discounted as irrelevant for judgment.[23] A possible implication of this model is, for example, that the positive effects PA has on negotiations (as described above) will be seen only when either motivation or ability are low.

[edit]The effect of the partner’s emotions

Most studies on emotion in negotiations focus on the effect of the negotiator’s own emotions on the process. However, what the other party feels might be just as important, as group emotions are known to affect processes both at the group and the personal levels. When it comes to negotiations, trust in the other party is a necessary condition for its emotion to affect,[14] and visibility enhances the effect.[18] Emotions contribute to negotiation processes by signaling what one feels and thinks and can thus prevent the other party from engaging in destructive behaviors and to indicate what steps should be taken next: PA signals to keep in the same way, while NA points that mental or behavioral adjustments are needed.[19]
Partner’s emotions can have two basic effects on negotiator’s emotions and behavior: mimetic/ reciprocal or complementary.[15] For example, disappointmentor sadness might lead to compassion and more cooperation.[19] In a study by Butt et al. (2005) which simulated real multi-phase negotiation, most people reacted to the partner’s emotions in reciprocal, rather than complementary, manner. Specific emotions were found to have different effects on the opponent’s feelings and strategies chosen:
  • Anger caused the opponents to place lower demands and to concede more in a zero-sum negotiation, but also to evaluate the negotiation less favorably.[24]It provoked both dominating and yielding behaviors of the opponent.[15]
  • Pride led to more integrative and compromise strategies by the partner.[15]
  • Guilt or regret expressed by the negotiator led to better impression of him by the opponent, however it also led the opponent to place higher demands.[14]On the other hand, personal guilt was related to more satisfaction with what one achieved.[19]
  • Worry or disappointment left bad impression on the opponent, but led to relatively lower demands by the opponent.[14]

[edit]Problems with lab negotiation studies

Negotiation is a rather complex interaction. Capturing all its complexity is a very difficult task, let alone isolating and controlling only certain aspects of it. For this reason most negotiation studies are done under laboratory conditions, and focus only on some aspects. Although lab studies have their advantages, they do have major drawbacks when studying emotions:
  • Emotions in lab studies are usually manipulated and are therefore relatively ‘cold’ (not intense). Although those ‘cold’ emotions might be enough to show effects, they are qualitatively different from the ‘hot’ emotions often experienced during negotiations.[25]
  • In real life there is self-selection to which negotiation one gets into, which effects the emotional commitment, motivation and interests. However this is not the case in lab studies.[19]
  • Lab studies tend to focus on relatively few well defined emotions. Real life scenarios provoke a much wider scale of emotions.[19]
  • Coding the emotions has a double catch: if done by a third side, some emotions might not be detected as the negotiator sublimates them for strategic reasons. Self report measures might overcome this, but they are usually filled only before or after the process, and if filled during the process might interfere with it.[19]

[edit]Team negotiations

Due to globalization and growing business trends, negotiation in the form of teams is becoming widely adopted. Teams can effectively collaborate to break down a complex negotiation. There is more knowledge and wisdom dispersed in a team than in a single mind. Writing, listening, and talking, are specific roles team members must satisfy. The capacity base of a team reduces the amount of blunder, and increases familiarity in a negotiation.[26]

[edit]Barriers to negotiations

  • Die hard bargainers.
  • Lack of trust.
  • Informational vacuums and negotiator’s dilemma.
  • Structural impediments.
  • Spoilers.
  • Cultural and gender differences.
  • Communication problems.
  • The power of dialogue.

[edit]See also

Mediation

http://en.wikipedia.org/wiki/Mediation

From Wikipedia, the free encyclopedia
Mediation, as used in law, is a form of alternative dispute resolution (ADR), a way of resolving disputes between two or more parties. A third party, the mediator, assists the parties to negotiate their own settlement (facilitative mediation). In some cases, mediators may express a view on what might be a fair or reasonable settlement, generally where all the parties agree that the mediator may do so (evaluative mediation).
Mediation has a structure, timetable and dynamics that “ordinary” negotiation lacks. The process is private and confidential. The presence of a mediator is the key distinguishing feature of the process. There may be no obligation to go to mediation, but in some cases, any settlement agreement signed by the parties to a dispute will be binding on them.
Mediators use various techniques to open, or improve, dialogue between disputants, aiming to help the parties reach an agreement (with concrete effects) on the disputed matter. Much depends on the mediator’s skill and training. The mediator must be wholly impartial. Disputants may use mediation in a variety of disputes, such as commercial, legal, diplomatic, workplace, community and family matters. A third-party representative may contract and mediate between (say) unions and corporations. When a workers’ union goes on strike, a dispute takes place, the parties may agree to a third party to settle a contract or agreement between the union and the corporation.

Contents

  [hide

[edit]History of mediation

The activity of mediation in itself appeared in very ancient times. Historians presume early cases in Phoenician commerce (but suppose its use in Babylon, too). The practice developed in Ancient Greece (which knew the non-marital mediator as a proxenetas), then in Roman civilization, (Roman law, starting fromJustinian‘s Digest of 530 – 533 CE) recognized mediation. The Romans called mediators by a variety of names, including internunciusmediumintercessor,philantropusinterpolatorconciliatorinterlocutorinterpres, and finally mediator.[citation needed]
Some cultures regarded the mediator as a sacred figure, worthy of particular respect; and the role partly overlapped with that of traditional wise men or tribal chief. Members of peaceful communities frequently brought disputes before local leaders or wise men to resolve local conflicts.[1] This peaceful method of resolving conflicts was particularly prevalent in communities of Confucians and Buddists.[2]

[edit]Mediation and conciliation

“Conciliation” sometimes serves as an umbrella-term that covers all mediation and facilitative and advisory dispute-resolution processes.[3] Neither process determines an outcome, and both share many similarities. For example, both processes involve a neutral third-party who has no enforcing powers.
One significant difference between conciliation and mediation lies in the fact that conciliators possess expert knowledge of the domain in which they conciliate. The conciliator can make suggestions for settlement terms and can give advice on the subject-matter. Conciliators may also use their role to actively encourage the parties to come to a resolution. In certain types of dispute the conciliator has a duty to provide legal information. This helps any agreement reached to comply with any relevant statutory framework pertaining to the dispute. Therefore conciliation may include an advisory aspect.
Mediation works purely facilitative: the practitioner has no advisory role. Instead, a mediator seeks to help parties to develop a shared understanding of the conflict and to work toward building a practical and lasting resolution.[4]
Several different styles of mediation exist: evaluative, facilitative, and transformative. Evaluative mediation has somewhat of an advisory role in that its practitioners evaluate the strengths and weaknesses of each side’s argument should they go to court; whereas facilitative mediators and transformative mediators do not do this.
Furthermore, the definitions of mediation used by the different styles of mediation differ in that evaluative mediation has the main drive and goal of settlement, while transformative mediation, in contrast, looks at conflict as a crisis in communication and seeks to help resolve the conflict, thereby allowing people to feelempowered in themselves and better about each other. The agreement that arises from this type of mediation occurs as a natural outcome of the resolution of conflict.
Both mediation and conciliation serve to identify the disputed issues and to generate options that help disputants reach a mutually-satisfactory resolution. They both offer relatively flexible processes; and any settlement reached should have the agreement of all parties. This contrasts with litigation, which normally settles the dispute in favour of the party with the strongest legal argument. In-between the two operates collaborative law, which uses a facilitative process where each party has counsel.
Mediation and Counselling A counsellor generally uses therapeutic techniques. Some – such as a particular line of questioning – may be useful in mediation. But the role of the counsellor differs from the role of the mediator. The list below is not exhaustive but it gives an indication of important distinctions between the work of mediators and counsellors.
  • A mediator aims for clear agreement between the participants as to how they will deal with specific issues. A counsellor is more concerned with the parties gaining a better self-understanding of their individual behaviour
  • A mediator, while acknowledging a person’s feelings, does not explore them in any depth. A counsellor is fundamentally concerned about how people feel about a range of relevant experiences
  • A mediator is focused upon how people would like to see things in the future rather than a detailed analysis of past events. A counsellor may find it necessary to explore a person’s past in detail to bring out into the open the origins and the patterns of a person’s beliefs and behaviour
  • A mediator controls the process but does not overtly try to influence the participants or the actual outcome. A counsellor often takes an intentional role in the process, seeking to influence the parties to move in a particular direction or look at certain issues
  • A mediator relies on both parties being present so they can negotiate, usually face-to-face. A counsellor does not necessarily see both parties at the same time.
  • A mediator is required to be neutral. A counsellor may play a more supportive role, where appropriate.
  • Mediation requires both parties to be willing to negotiate. Counselling may work with one party even if the other is not ready or willing for change.
  • Mediation is a structured process that is usually restricted to one or a few sessions. Counselling tends to be more ongoing, depending upon a person’s needs and progress.

[edit]Why choose mediation

Several reasons exist for choosing mediation over other channels of dispute resolution (such as those involving attorneys and courts).
  • Parties to a dispute may choose mediation as (often) a less expensive route to follow for dispute resolution. While a mediator may charge a fee comparable to that of an attorney, the mediation process generally takes much less time than moving a case through standard legal channels. While a case in the hands of a lawyer or filed in court may take months or even years to resolve, a case in mediation usually achieves a resolution in a matter of hours. Taking less time means expending less money on hourly fees and costs.
  • Mediation offers a confidential process. While court hearings of cases happen in public, whatever happens in mediation remains strictly confidential. No one but the parties to the dispute and the mediator(s) know what has gone on in the mediation forum. In fact, confidentiality in mediation has such importance that in most cases the legal system cannot force a mediator to testify in court as to the content or progress of mediation. Many mediators actually destroy their notes taken during a mediation once that mediation has finished. The only exceptions to such strict confidentiality usually involve child abuse or actual or threatened criminal acts.
  • Mediation offers multiple and flexible possibilities for resolving a dispute and for the control the parties have over the resolution. In a case filed in court, the parties will obtain a resolution, but a resolution thrust upon the parties by the judge or jury. The result probably will leave neither party to the dispute totally happy. In mediation, on the other hand, the parties have control over the resolution, and the resolution can be unique to the dispute. Often, solutions developed by the parties are ones that a judge or jury could not provide. Thus, mediation is more likely to produce a result that is mutually agreeable, or win/win, for the parties. And because the result is attained by the parties working together and is mutually agreeable, the compliance with the mediated agreement is usually high. This also results in less costs, because the parties do not have to seek out the aid of an attorney to force compliance with the agreement. The mediated agreement is, however, fully enforceable in a court of law.
  • The mediation process consists of a mutual endeavor. Unlike in negotiations (where parties are often entrenched in their positions), parties to a mediation usually seek out mediation because they are ready to work toward a resolution to their dispute. The mere fact that parties are willing to mediate in most circumstances means that they are ready to “move” their position. Since both parties are willing to work toward resolving the case, they are more likely to work with one another than against one another. The parties thus are amenable to understanding the other party’s side and work on underlying issues to the dispute. This has the added benefit of often preserving the relationship the parties had before the dispute.
  • Finally, but certainly not least, and as mentioned earlier in this article, the mediation takes place with the aid of a mediator who is a neutral third party. A good mediator is trained in conflict resolution and in working with difficult situations. The good mediator is likely to work as much with the emotional aspects and relationship aspects of a case as he or she is to work on the “topical” issues of the matter. The mediator, as a neutral, gives no legal advice, but guides the parties through the problem solving process. The mediator may or may not suggest alternative solutions to the dispute. Whether he or she offers advice or not, the trained mediator helps the parties think “outside of the box” for possible solutions to the dispute, thus enabling the parties to find the avenue to dispute resolution that suits them best.[5]

[edit]Early neutral evaluation and mediation

The technique of early neutral evaluation (ENE) provides early focus in complex commercial disputes, and — based on that focus — offers a basis for sensible case-management or a suggested resolution of the entire case in its very early stages.
In early neutral evaluation, an evaluator acts as a neutral person to assess the strengths and weaknesses of each of the parties and to discuss the same with parties jointly or in caucuses, so that parties gain awareness (via independent evaluation) of the merits of their case. In the case of mediation, solutions normally emerge from the parties themselves and mediators endeavour to find the most acceptable solution by bridging gaps between the parties.
Parties generally call on a senior counsel or on a panel with expertise and experience in the subject-matter under dispute in order to conduct ENE. One refers to such persons as “evaluators” or as “neutral persons”.

[edit]Mediator education and training

Suitable education and training for mediators becomes a complex issue — largely due to the breadth of areas which may call on mediation as a means of dispute-resolution. Debate ensues on what constitutes adequate training on the principles of mediation as well as what personal attributes an individual needs in order to effectively carry out a mediator’s role.
The educational requirements for accreditation as a mediator differ between accrediting groups and from country to country. In some cases legislation mandates these requirements; while in others professional bodies impose standards and applicants must comply prior to becoming accredited by them. Many US universities offer graduate studies in mediation, culminating in the PhD or DMed degrees.
In Australia, for example, professionals wanting to practice in the area of family law must have tertiary qualifications in law or in social science, undertake 5 days training in mediation and engage in at least 10 hours of supervised mediation. Furthermore, they must also undertake 12 hours of mediation-education or training every 12 months.
Other institutions offer units in mediation across a number of disciplines such as law, social science, business and the humanities. In Australia not all fields of mediation-work require academic qualifications, as some deal more with practical skills rather than with theoretical knowledge: to this end membership-organizations provide training-courses to further the adoption and practice of mediation. Internationally a similar approach to the training of mediators is taken by organizations such as the Centre for Effective Dispute Resolution.
There are no legislated national or international standards on the level of education that apply to all mediation practitioner’s organizations. However, organizations such as the National Alternative Dispute Resolution Advisory Council (NADRAC) in Australia continue to advocate for a wide scope on such issues. Other systems apply in other jurisdictions such as Germany, which advocates a higher level of educational qualification for practitioners of mediation.

[edit]Mediator codes of conduct

The application of a code of conduct to the practice of mediation becomes problematic — due in part to the diverse number and type of practitioners in the field. A tendency exists for professional societies to develop their own codes of conduct, which apply to their own members.[citation needed] Examples of this in Australia include the mediation codes of conduct developed by the Law Societies of South Australia and Western Australia and those developed by organisations such as Institute of Arbitrators & Mediators Australia (IAMA) and LEADR for use by their members. Other organizations such as the American Center for Conflict Resolution Institute ([www.accri.org]) have developed both classroom and distance learning courses which subscribe to its mission of promoting peace through education. The CPR/Georgetown Ethics Commission (www.cpradr.org), the Mediation Forum of the Union International des Avocats, and the European Commission have also promulgated codes of conduct for mediators.
Writers in the field of mediation normally espouse a code of conduct that mirrors the underlying principles of the mediation process. In this respect some of the most common aspects of a mediator codes of conduct include:
  • a commitment to inform participants as to the process of mediation.
  • the need to adopt a neutral stance towards all parties to the mediation, revealing any potential conflicts of interest.
  • the requirement for a mediator to conduct the mediation in an impartial manner
  • within the bounds of the legal framework under which the mediation is undertaken any information gained by the mediators should be treated as confidential.
  • mediators should be mindful of the psychological and physical wellbeing of all the mediations participants.
  • mediators should not offer legal advice, rather they should direct participants to appropriate sources for the provision of any advice they might need.
  • mediators should seek to maintain their skills by engaging in ongoing training in the mediation process.
  • mediators should practise only in those fields in which they have expertise gained by their own experience or training.
In France, professional mediators have created an organization to develop a rational approach to conflict resolution. This approach is based on a scientific definition of a person and a conflict. It helps to develop a structured process of mediation interviews and meetings of the parties. Technology mediators are particularly advanced in terms of accompanying changes induced by the dynamics of conflict. Mediators have adopted a code of ethics which provides the protagonists guarantees professionalism[6]

[edit]Accreditation of ADR in Australia

The National Mediator Accreditation System (NMAS) commenced operation on 1 January 2008. It is an industry based scheme which relies on voluntary compliance by mediator organisations that agree to accredit mediators in accordance with the requisite standards.[7]
ADR practitioners recognize that mediators (as distinct from arbitrators or conciliators) need to be recognized as having professional accreditations the most. There are a range of organizations within Australia that do have extensive and comprehensive accreditations for mediators but people that use mediation are unsure as to what level of accreditation is required for the quality of service that they receive. Standards will tend to vary according to the specific mediation and the level of specificity that is desired. Due to the wide range of ADR processes that are conducted it would be very difficult to have a set of standards that could apply to all ADR processes, but standards should be developed for particular ADR processes
Clients need the assurance that mediators have some form of ongoing assessment and training throughout their careers.[citation needed] Mediators must satisfy different criteria to be eligible for a variety of mediator panels. Also different mediator organizations have different ideals of what makes a good mediator which in turn reflects the training and accreditation of that particular organization. Selection processes for ADR practitioners are based on the needs of the service, but a problem is posed when organizations, such as the court want to refer a client to mediation and they usually have to rely on their in-house mediators or rely on word of mouth. There are inconsistent standards. A national accreditation system could very well enhance the quality and ethics of mediation and lead mediation to become more accountable. There is a need for a unified accreditation system for mediators across Australia to establish clarity and consistency.

[edit]Reference links

  • Boulle, L. (2005). Mediation: Principles Processes Practices. LexisNexis Butterworths. p 348.

[edit]Uses of mediation

One core problem in the dispute-resolution process involves the determination of what the parties actually dispute. Through the process of mediation participants can agree to the scope of the dispute or issues requiring resolution. Examples of this use of mediation in the Australian jurisdiction include narrowing the scope of legal pleadings and its use in industrial and environmental disputes.
Definition of the nature of a dispute can often clarify the process of determining what method will best suit its resolution.
One of the primary uses of mediation involves parties using the mediation process to define the issues, develop options and achieve a mutually-agreed resolution.
Australia has incorporated mediation extensively into the dispute-settlement process of family law and into the latest round of reforms concerning industrial relations under the WorkChoices amendments to the Workplace Relations Act.
Where prospects exist of an ongoing disputation between parties brought on by irreconcilable differences (stemming from such things as a clash of religious or cultural beliefs), mediation can serve as a mechanism to foster communication and interaction.
Mediation can function not only as a tool for dispute resolution but also as a means of dispute prevention. Mediation can be used to facilitate the process of contract negotiation by the identification of mutual interests and the promotion of effective communication between the two parties. Examples of this use of mediation can be seen in recent enterprise bargaining negotiations within Australia.
Governments can also use mediation to inform and to seek input from stakeholders in formulation or fact-seeking aspects of policy-making. Mediation in wider aspect can also serve to prevent conflict or to develop mechanisms to address conflicts as they arise.

[edit]Native-title mediation in Australia

In response to the Mabo decision by the High Court of Australia, the Australian Government sought to alleviate the concerns of a wide section of the population and industry on the decisions implications on land tenure and use by enacting the Native Title Act 1993 (Cth). A cornerstone of the act is the use of mediation as a mechanism to determine future native title rights within Australia.
Although not barring litigation, the Act seeks to promote mediation through a process incorporating the Federal Court and the National Native Title Tribunal(NNTT). This is seen as having better long term success by providing flexible and practical solutions to the needs of the various stakeholders.
The extensive use of mediation in the resolution of native title matters does not stop the referral of matters to the courts for resolution, nor is mediation precluded from occurring whilst legal challenges are being pursued. A recent case where Native Title rights were found exist over a large portion of the City of Perth has seen the simultaneous use of mediation and formal legal appeals processes.
A key feature of Native Title mediation involves the use of Indigenous Land Use Agreements (ILUAs). These binding agreements are negotiated between native title claimant groups and others such as pastoralists, miners and local governments and cover aspects of the use of the land and any future act such as the granting of mining leases.
Some of the features of native title mediation which distinguish it from other forms include the likelihood of lengthy negotiation time frames, the number of parties (ranging on occasion into the hundreds) and that statutory and case law prescriptions constrain some aspects of the negotiations.

[edit]Mediation in South Africa

(There is a full set of references for this article. These will be added shortly)
Since the early 1980s a number of institutions have championed the progress of mediation. The Independent Mediation Service of South Africa (IMSSA) was established in 1984 to replace the existing and discredited mechanisms. It trained mediators who then worked through Local Dispute Resolution Committees set up as part of the National Peace Accord. The initial training of mediators was undertaken by ACAS, despite the United Kingdom’s relatively slow progress in developing its own mediation programs. The IMSSA covers all potential areas of mediation within unionised environments, whereas the more recently created Commission for Conciliation, Mediation and Arbitration (CCMA) was formed as result of the Labour Relation Act No 66 1995, and replaced the Industrial Courts in handling large areas of employment disputes. These organisations ensure that mediation in all fields is underpinned by a thorough understanding of negotiation theory.
Additionally, there are developments, supportive of mediation, where non-formal processes that engage a community in more holistic solution-finding, are growing.
As is probably to be expected, there were concerns of the neutrality of mediators, for which the notion of a ‘process advocate’ has been successful in showing that process of mediation will lead to an agreement that both meets the parties needs and those of justice and fairness. This is helpful to remember when discussing concerns about the neutrality of the mediator.
Mediation in South Africa has also benefited from legal support for the process. Since 1995, it has been a legal right to take an employment dispute to conciliation/mediation. Additionally, mediation agreements are binding in law, with a high rate of compliance. The process has grown from generally covering collective agreements such as for wages or terms and conditions, to encompass more rights-based matters usually dismissal.
This legal support, coupled with the will to find mutually beneficial outcomes, has helped mediation to be successful. This success has subsequently encouraged more parties to pursue this approach. This has been particularly noticeable in tackling serious and deep-seated conflict, as well becoming as the foundation for relationship building.
That said, it cannot be taken as read that mediation has been unequivocally successful, as a case in a Southern Cape town illustrated. Here there was a threatened dispute by the municipal workers of 2 separate unions. A mediation that produced a result but did not restore relationships led to a further, more troublesome, breakdown. This highlights importance of ensuring that a mediation is not concluded when only a superficial agreement has been reached.
Mediation has also grown in South Africa because it hasn’t limited itself to a single form of the process. In fact, in order to offer as full a range of options as possible to parties the service has expanded to include Med/Arb, Con/Arb and Arb/Med. It has also benefited from CCMAs target of preventing disputes through:
• encouraging parties away from positional bargaining
• discussions with organisation that appear to be bringing large numbers of cases forward
• general awareness sessions, and
• ensuring, literally that the mediator can speak the language of the parties.
In analysing the success of workplace mediation, it would be easy to use the South African experience as an example of how effective a tool for social engineering mediation can be. However, it should be noted that the success was due in part to the removal of untrusted institutions and the creation of organisations specifically to promote the mediation approach. In a distrusting environment, it has been shown that mediation offers a way of levelling the playing field, equalising the power of the parties involved. The realisation in the 60s that the armed struggle would realise unacceptably high costs brought the sides to the negotiating table to begin a long process of trust building that began its transformation. It also draws, more importantly, on the way in which communities are subsequently developing means of resolving their disputes. In South Africa, the success of mediation in one area has had knock on effects in other areas. This is yet to be the case in the UK, though the lessons of establishing government backed, yet independent, organisations to promote and deliver mediation, as well as enacting legislation that is supportive of these institutions and processes, are ones that could benefit the UK.

[edit]Philosophy of mediation

[edit]The uses of mediation in preventing conflicts

Mediation is adaptable to anticipate problems, grievances and difficulties between parties before the conflict may arise. This has potential applications in large and private sector organisations, particularly where they are subject to excessive change, competition and economic pressure. A key way mediation is used to prevent these conflicts is complaint handling and management. This is a conflict prevention mechanism designed to handle a complaint effectively at first contact and to minimise the possibility of it developing into a dispute. According to Charlton (2000, p. 4) a person who undertakes this role is commonly known as a “dispute preventer”.
While the corporate sector may provide one area in which to use the mediation process for preventing conflicts, dealing with everyday life’s disputes provides another. This is no more evident in neighbourhood conflict. One’s behaviour affects one’s neighbours, just as what they do affect you. The key way to prevent conflicts with neighbours is to behave as a good neighbour oneself. Spencer and Altobelli (2005, p. 17) believe simple consideration and conversation with neighbours helps achieve a peaceful coexistence, making it easier for you to live as privately or as sociably as you wish. Ideal suggestions for consideration in preventing conflicts between neighbours include:
  • meeting one’s neighbors
  • keeping one’s neighbors informed
  • awareness of differences
  • appreciation
  • consideration of one’s neighbors’ points of view
  • showing candidness
  • communicating
  • demonstrating respect
One can also employ mediation to reduce or prevent violence in sports and in schools, using peers as mediators in a process known as peer mediation. This process (highlighted by Cremin)[8] provides a way of handling conflicts and preventing violence in primary schools and high schools. Schools adopting this process often recruit and train students interested in being peer mediators. Peace Pals, developed by Rita Schellenberg, a professional school counselor, is a peer mediation program used in the schools. Peace Pals was studied over a 5-year period and revealed several positive outcomes including a reduction in school-wide violence (Schellenberg, Parks-Savage, & Rehfuss, 2007).
In general, effective communication provides the ideal way to prevent and resolve any conflict; talking things over — along with listening — handles problems optimally and should[original research?] ultimately avoid the dispute going to the courts.

[edit]Responsibilities regarding confidentiality in mediation

One of the hallmarks of mediation is that the process is strictly confidential. The mediator must inform the parties that communications between them during the intake discussions and the mediation process are to be private and confidential. In general, the information discussed can never be used as evidence in the event that the matter does not settle at mediation and proceeds to a court hearing. Spencer and Altobelli (2005, p. 261) point out it is considered common for parties entering into mediation to sign a mediation agreement document with the mediator. The parties therefore agree that it’s a condition of being present or participating in the mediation and the document if necessary may be deemed confidential by virtue of the common law.
Confidentiality lies at the heart of mediation. It is imperative for parties to trust the process. Very few mediations will ever succeed unless the parties can communicate fully and openly without fear of compromising their case before the courts. Charlton and Dewdney (2004, p. 344.) highlight mediation confidentiality is seen as one of the key ingredients to encourage disputing parties to negotiate with each other in order to achieve a settlement of their dispute.
Organisations have often seen confidentiality as a reason to use mediation ahead of litigation, particularly when disputes arise in sensitive areas of their operation, or to avoid their affairs becoming publicised among business competitors, acquaintances or friends. Steps put in place during mediation to help ensure this privacy include;
  1. The mediation meeting is conducted behind closed doors.
  2. Outsiders can only observe proceedings with both parties consent.
  3. No recording of the transcript is kept; and
  4. There is no external publicity on what transpired at the mediation.
There is no doubt confidentiality contributes to the success and integrity of the mediation process. However it will be difficult for a mediator to guarantee full confidentiality protection between the parties.

[edit]Legal implications of mediated agreements

Parties who enter into mediation do not forfeit any legal rights or remedies. If the mediation process does not result in settlement, each side can continue to enforce their rights through appropriate court or tribunal procedures. However, if a settlement has been reached through mediation, legal rights and obligations are affected in differing degrees. In some situations, the parties may only wish to have a memorandum or a moral force agreement put in place; these are often found in community mediations. In other instances, a more comprehensive deed of agreement is drafted and this deed serves to bring a legally binding situation. Charlton and Dewdney (2004, p. 126.) point out that a mediated agreement may be registered with the court to make it legally binding and it is advisable to have a lawyer prepare the form or, at the very least, to obtain independent legal advice about the proposed terms of the agreement.
Mediation has opened the door for parties in conflict to resolve their differences through non-traditional judicial forums. Over the last few decades, mediation has brought to light the processes, or alternatives to litigation, that enable parties to resolve their differences without the high cost associated with litigation. An interesting remark made by Spencer and Altobelli (2005, p. 223): “Court systems are eager to introduce mandatory mediation as a means to meet their needs to reduce case loads and adversarial litigation, and participants who understand the empowerment of mediation to self-determine their own agreements are equally as eager to embrace mediation as an alternative to costly and potentially harmful litigation.”
Recently[when?], mediation has come under the spotlight and the watchful eye of many state legal systems[who?] for its ability to resolve party disputes, reduce court case loads, and reduce overall legal costs. Yet while parties enter into mediation intending to preserve their legal rights and remedies, mediation may result in these rights being directly or indirectly affected. Parties that have resolved their conflict through this voluntary process and settled on an agreement should seek legal advice if they are unsure of the consequences.

[edit]Common aspects of mediation

Mediation as a process involves a third party (often an impartial third party) assisting two or more persons, (“parties” or “stakeholders“) to find mutually-agreeable solutions to difficult problems.
People make use of mediation at many different levels and in multiple contexts: from minor disputes to global peace-talks. This makes it difficult to provide a general description without referring to practices in specific jurisdictions — where “mediation” may in fact have a formal definition and in some venues may require specific licenses. This article attempts only a broad introduction, referring to more specific processes (such as peace processbinding arbitration, ormindful mediation) directly in the text.
While some people loosely use the term “mediation” to mean any instance in which a third party helps people find agreement, professional mediators generally believe it essential that mediators have thorough training, competency, and continuing education. The term “mediation” also sometimes occurs incorrectly referring to arbitration; a mediator does not impose a solution on the parties, whereas an arbitrator does.
While mediation implies bringing disputing parties face-to-face with each other, the strategy of “shuttle diplomacy”, where the mediator serves as a liaison between disputing parties, also sometimes occurs as an alternative.
Some of the types of disputes or decision-making that often go to mediation include the following:
Family:
  • Prenuptial/Premarital agreements
  • Financial or budget disagreements
  • Separation
  • Divorce
  • Financial distribution and spousal support (alimony)
  • Parenting plans (child custody and visitation)
  • Eldercare issues
  • Family businesses
  • Adult sibling conflicts
  • Disputes between parents and adult children
  • Estate disputes
  • Medical ethics and end-of-life issues
Workplace:
Public disputes:
  • Environmental
  • Land-use
Disputes involving the following issues:
Other:
Mediation commonly includes the following aspects or stages:
  • a controversy, dispute or difference of positions between people, or a need for decision-making or problem-solving
  • decision-making remaining with the parties rather than imposed by a third party
  • the willingness of the parties to negotiate a “positive” solution to their problem, and to accept a discussion about respective interests and objectives
  • the intent to achieve a “positive” result through the facilitative help of an independent, neutral third person
In the United States, mediator codes-of-conduct emphasize “client-directed” solutions rather than those imposed by a mediator in any way. This has become a common, definitive feature of mediation in the US and in the UK.
Mediation differs from most other adversarial resolution processes by virtue of its simplicity, informality, flexibility, and economy.
The typical mediation has no formal compulsory elements, although some common elements usually occur:
  • each of the parties allowed to explain and detail their story;
  • the identification of issues (usually facilitated by the mediator);
  • the clarification and detailed specification of respective interests and objectives;
  • the conversion of respective subjective evaluations into more objective values;
  • identification of options;
  • discussion and analysis of the possible effects of various solutions;
  • the adjustment and the refining of the proposed solutions;
  • the memorialization of agreements into a written draft
Due to the particular character of this activity, each mediator uses a method of his or her own (the law does not ordinarily govern a mediator’s methods), that might eventually differ markedly from the above scheme. Also, many matters do not legally require a particular form for the final agreement, while others expressly require a precisely determined form.
Most countries respect a mediator’s confidentiality.

[edit]Online mediation

Online mediation, a sub-category of online dispute resolution, involves the application of online technology to the process of mediation. Online Mediation extends the reach of mediators to disputes between persons who are too geographically distant, or otherwise unable (for example, through disability), to attend; or where the value of the dispute does not justify the cost of a face-to-face mediation. Online mediation can also prove useful prior to face-to-face mediation — to commence the mediation process early where urgency exists, to narrow the issues, to commence brainstorming of solutions and to prepare the parties.

[edit]Mediation in business and in commerce

The eldest branch of mediation applies to business and commerce[citation needed], and still this one is the widest field of application, with reference to the number of mediators in these activities and to the economical range of total exchanged values.[citation needed]
The mediator in business or in commerce helps the parties to achieve the final goal of respectively buying/selling (a generic contraposition that includes all the possible varieties of the exchange of goods or rights) something at satisfactory conditions (typically in the aim of producing a bilateral contract), harmonically bringing the separate elements of the treaty to a respectively balanced equilibrium. The mediator, in ordinary practice, usually cares of finding a positive agreement between (or among) the parties looking at the main pact as well as at the accessory pacts too, thus finding a composition of all the related aspects that might combine. in the best possible way, all the desiderata of his clients.
Academics sometimes include this activity among the auxiliary activities of commerce and business, but it has to be recalled that it differs from the generality of the others, because of its character of independence from the parties: in an ordinary activity of agency, or in the unilateral mandate this character is obviously missing, this kind of agent merely resulting as a longa manus of the party that gave him his (wider or narrower) power of representation. The mediator does not obey to any of the parties, and is a third party, looking at the contraposition from an external point of view.
Subfields of commercial mediation include work in well-known specialized branches: in finance, in insurance, in ship-brokering, in real estate and in some other individual markets, mediators have specialized designations and usually obey special laws. Generally, mediators cannot practice commerce in the genre of goods in which they work as specialized mediators.
Procurement Mediation may be considered a sub-field with particular identifying characteristics in that one party will be a state or public body operating in a private contractual sphere. In Common Law jurisdictions there is normally no separate body of public contractual law beyond those regulatory stipulations on creation of the supply contracts that derive from the fields of State Aids (EU Law and domestic application) or general administrative guidelines provided by the body in question or its regulating government body. The general law of contract will apply in the UK accordingly. Procurement Mediation occurs in circumstances after creation of the contract where a dispute arises in regard to the performance of the contract or the payments due under it. A Procurement Mediator in the UK may be a regular specialist in this type of contract known to the parties alternatively may derive his appointment from formal approval by the public body in question to a specific private mediation panel (e.g. Savills Mediation). The skills required for such mediations may be found however more generally amongst mediators appointed to handle contracts of a commercial character where general principles of contractual law apply

[edit]Mediation and litigation

Mediation offers a process by which two parties work towards an agreement with the aid of a neutral third party. Litigation, however, is a process in which the courts impose binding decisions on the disputing parties in a determinative process operating at the level of legal rights and obligations [Boulle 2005]. These two processes sound completely different, but both are a form of dispute resolution. Litigation is conventionally used and conventionally accepted, but Mediation is slowly becoming more recognized as a successful tool in dispute resolution. Slowly these processes are becoming inter-dependent, as the Courts in some cases are now referring parties to Mediation. In saying this, there are distinct differences between the two processes. Mediation claims to resolve many of the problems associated with litigation, such as the high costs involved, the formality of the court system and the complexity of the court process. Mediation does not create binding agreements unless the parties consent to it, and the Mediator has no say in the outcome. Even though our court system and mediation have increasing connections, they still reflect different value assumptions and structural approaches towards dispute resolution.

[edit]Community mediation

Disputes involving neighbors often have no formal dispute-resolution mechanism. Community-mediation centers generally focus on this type of neighborhood conflict, with trained volunteers from the local community usually serving as mediators. These organizations often serve populations that cannot afford to utilize the court systems or other private ADR-providers. Many community programs also provide mediation for disputes between landlords and tenants, members of homeowners associations, and businesses and consumers. Mediation helps the parties to repair relationships, in addition to addressing a particular substantive dispute. Agreements reached in community mediation are generally private, but in some states, such as California, the parties have the option of making their agreement enforceable in court. Many community programs offer their services for free or at most, charge a nominal fee.
The roots of community mediation can be found in community concerns to find better ways to resolve conflicts, and efforts to improve and complement the legal system. Citizens, neighbors, religious leaders* and communities became empowered, realizing that they could resolve many complaints and disputes on their own in their own community through mediation. Experimental community mediation programs using volunteer mediators began in the early 1970s in several major cities. These proved to be so successful that hundreds of other programs were founded throughout the country in the following 2 decades. Community mediation programs now flourish throughout the United States.

[edit]Peer Mediation

Mediation is alternative dispute resolution (ADR), it is used to resolve a disagreement between parties. A peer mediator is someone in the same age group as the parties, or other strong similarities. Such as all being students at the same school, or all being equal levels in a business. As a peer mediator they can relate to the parties having the disagreement better than an outsider could. So ideally they would be able to be more successful in mediation.[9]

[edit]Peer Mediation Approaches

Approaches to peer mediation first include choosing a peer mediator that is neutral and can remain neutral during mediation. Peer mediation had long term positive benefits on schools. This happens by promoting social cohesion, they facilitate the development of protective factors that create positive school climates.[10] Through the National Healthy School Standard (Department for Education and Skills, 2004) highlights the significance of this form of approach to lowering bullying levels and promoting pupil achievement.[9]
Peace Pals is an empirically validated peer mediation program (Schellenberg, Parks-Savage & Rehfuss, 2007), published in the American School Counselors Association (ASCA) award-winning journal, Professional School Counseling, (PSC). The program’s creator is Dr. Rita Schellenberg, counselor educator, counselor supervisor, and licensed professional school counselor. The program was implemented at the elementary school level and found to be effective in reducing school violence and enhancing pro-social skills, while creating a more positive, peaceable school climate.

[edit]Peer Mediation Results

When peer mediation was used in schools there was a reduction in crime in schools, counselor and administrator time in dealing with student enhanced, self-esteem, better attendance, and development of leadership and problem-solving skills on the part of students. Such conflict resolution programs have increased in schools 40% since 1991.[11]
For example, a study of the Peace Pals peer mediation program was conducted in a diverse suburban elementary school where mediation was available to all students (N = 825). Outcome data revealed significant and long-term reductions in school-wide violence over a five year period following program implementation. The reductions included both verbal and physical conflict among diverse student populations within the school (Schellenberg, Parks-Savage, & Rehfuss, 2007). In addition to reducing school-wide violence, the study also indicated significant gains in mediator knowledge pertaining to conflict, conflict resolution, and mediation, which was maintained at 3-month follow-up. Additionally, mediators and participants viewed the Peace Pals program as effective and valuable, and all mediation sessions resulted in successful resolve.

[edit]Competence of the mediator

Numerous schools of thought exist on identifying the “competence” of a mediator. Where parties retain mediators to provide an evaluation of the relative strengths and weaknesses of the parties’ positions, subject-matter expertise of the issues in dispute becomes a primary aspect in determining competence.
Some would argue, however, that an individual who gives an opinion about the merits or value of a case does not practise “true” mediation, and that to do so fatally compromises the alleged mediator’s neutrality.
Where parties expect mediators to be process experts only (i.e., employed to use their skills to work through the mediation process without offering evaluations as to the parties’ claims) competence is usually demonstrated by the ability to remain neutral and to move parties though various impasse-points in a dispute. International professional organizations continue to debate what competency means.

[edit]When to use mediation

Not all disputes lend themselves well to mediation. One set of criteria for suitability, which is applied in the subsection below, is provided in Mediation – Principles Process Practice, Boulle L. 2005

[edit]Factors relating to the parties

Factors relating to the parties provide the most important determinants when deciding whether or not a dispute lends itself to mediation, as of course, the parties are the essential key to mediation. Basically, if the parties’ are not ready and willing to mediate, mediation cannot take place. If a mediation does take place against the parties’ wishes, the process will not work because one of the principles of mediation is participation, and the parties will not constructively participate if they are forced. Another factor to consider when judging a dispute’s suitability for mediation is whether the parties have legal representation. If one party does and the other does not, then it is not fair to mediate. Unlike the court system, a legal representative will not be appointed to the non-represented party. Therefore both parties need to consent to either be represented by legal advisers or not. It is not essential that legal advisers are present in the mediation session. However in most cases it is strongly advised that the parties seek legal advice before signing the legally binding agreement. A final factor to consider is the legal capacity of the parties. A minor cannot enter a mediation session for obvious legal reasons, the same goes for a person with mental illness or disability that would affect their decision-making ability. Once these are considered and no difficulties found, the remaining points on the checklist need to be considered.
There are several blogs and knolls dedicated to this topic. Notably the International Mediation Institute has a decision tree on its website, which is designed to help the parties to jointly select the most suitable mediator out of several neutrals who have all achieved certain level of professional competency. Seehttp://www.imimediation.org/decision-tree.

[edit]Preparing for mediation

People participating in mediation, often called “parties” or “disputants”, can take several steps to prepare for mediation, as can their lawyers, if involved.
Just as parties need not agree to take part in mediation, they need not prepare for mediation — with one notable exception. In some court-connected programs, courts will require disputants to both participate in and prepare for mediation. Preparation involves making a statement or summary of the subject of the dispute and then bringing the summary to the mediation.
If preparation for mediation is voluntary, why bother? Research[12] uncovered the following potential benefits of preparing. Disputants who meet the mediator prior to the mediation meeting tend to have less anxiety, a higher percentage of their disputes settle at mediation, and they express increased satisfaction with the mediation process.
Is mediation the right dispute resolution process at this time? This subdivides into two questions: is mediation the right dispute resolution process?; and are the parties ready to settle? For example, the dispute may involve a significant power-imbalance between the parties. In such a case, another dispute resolution process may make a better job of balancing power.
Readiness has great importance. Perhaps a loss or injury has occurred too recently. Overwhelming emotions may render objective decision-making extremely difficult, if not impossible. Alternatively, an injury may not have had sufficient time to heal so that any continuing loss becomes difficult to quantify. Other examples abound. Although entering into a mediation to settle the entire dispute may seem inappropriate, this does not mean that mediation cannot help. Some disputants participate in brief mediations with the goal of finding an interim solution to the problem that manages what the parties need to investigate during the interval between the present and when the dispute is ready to be settled.
Another preliminary mediation task involves identifying who should participate in the mediation. Laws give decision-making power to certain individuals. It seems obvious that these individuals are essential to the mediation. Others important participants could include lawyers, accountants, support-persons, interpreters, or spouses. Ask: who needs to be involved in order to reach settlements that will be accepted and implemented?
Convening a mediation meeting requires as much care as convening any important meeting. What location will best foster settlement? Do any participants have special needs? What date and time will work best? Will participants have access to food and beverages? Should the room have a table and chairs, or couches? Does the room have natural light? Does it offer privacy? How much time might a mediation take?
At times disputants have the ability to select the mediator: they should exercise due diligence. Anyone can act as a mediator, with no licensing required. Some mediator organizations require mediators to qualify. Mediators listed in court-connected rosters have to meet certain experiential and training requirements. Many mediators have a wide range of skills. Matching the mediator with the dispute and the needs of the disputant comprises a pre-mediation task. For example, the mediator will need to have skill in managing the many parties involved in a land-use dispute. Expertise in family law may prove important in divorce mediation,[13] while knowledge of construction matters will add value in construction disputes.
The task of selecting the right mediator can occur more readily when participants take time to analyze the dispute. Just what is the dispute about? Parties probably agree in some areas. By identifying agreements, parties clarify the issues in dispute. Typically, misunderstandings occur. These usually result from assumptions. What if these can get cleared up? Might some information be missing? and if all of the disputants shared all of the information, would the matter quickly settle?
Mediation involves communication and commitment to settle. Disputants can hone their communication-skills prior to mediation so that they express what they want more clearly and so that they hear what the other disputants say about what a settlement needs to include. Sometimes the dispute isn’t about money. Rather, a sincere apology will resolve matters. When disputants communicate respectfully, they generate more opportunities for creative settlements.
What objectives does each of the disputants have? Thinking about creative ways that each disputant can achieve their objectives before the mediation allows participants to check out the viability of possible outcomes. They come to the meeting well prepared to settle.
What information do participants require in order to make good decisions? Do pictures, documents, corporate records, pay-stubs, rent-rolls, receipts, medical reports, bank-statements and so forth exist that parties need to gather, copy and bring to the mediation? With all of the information at hand at the mediation, one may avoid the need to adjourn the meeting to another, later date while parties gather the information. And one minimises the risk of overlooking a critical piece of information.
Parties may need to make procedural choices. One important decision involves whether to keep the mediation. Other decisions address how to pay the mediator and whether to share all information relevant to the dispute. A contract signed before the mediation can address all procedural decisions. These contracts have various names, such as “Agreement to Mediate” or “Mediation Agreement”. Mediators often provide an Agreement to Mediate. Disputants, and their lawyers, can (by agreement) insert appropriate provisions into the agreement. In some cases, court-connected mediation programs have pre-determined procedures.
Mediators have a wide variety of practices in matters of contact with the disputants or their lawyers prior to the mediation meeting. Some mediators hold separate, in-person preliminary meetings with each disputant. These have many names, including “preliminary conferences”. Disputants who meet with the mediator before the mediation learn about the process of mediation, their own role, and what the mediator will do. Having met the mediator before the mediation, disputants can put to rest any concerns about whether they can trust the mediator’s neutrality and impartiality; and they can focus on how to resolve the dispute.
The above outline sets out the most significant steps in preparation for mediation. Each unique dispute may require a unique combination of preliminary steps.
To assist parties in preparing for commercial mediations, particularly in cross-border disputes where there can be very different understandings of the word “mediation” and the mediation process, the International Mediation Institute has posted an online evaluation form (called OLE!), which is designed to be used by parties working together with their counsel. This form can be downloaded from the IMI’s website at http://www.imimediation.org/ole.

[edit]References for Preparing for Mediation in Australia

1Zutter, Deborah. Preliminary Mediation Practices. Bond University, Australia:Unpublished Thesis, 2004.
Boulle, Laurence (1996). Mediation: Principles, Process, Practise. Sydney: Butterworths. ISBN 0406927472.
Ruth, Charlton (2000). Dispute Resolution Guidebook. New South Wales: Prymont. ISBN 0455217475.
Lancken, Stephen (2000). “The Preliminary Conference: Option or Necessity?”. Australian Dispute Resolution Journal 196 (11).
Zutter, Deborah (1999). “Mediation in the Shadow of Abuse”. The Advocate 867.

[edit]Mediation as a method of dispute resolution

In the field of resolving legal controversies, mediation offers an informal method of dispute resolution, in which a neutral third party, the mediator, attempts to assist the parties in finding resolution to their problem through the mediation process. Although mediation has no legal standing per se, the parties can (usually with assistance from legal counsel) commit agreed points to writing and sign this document, thus producing a legally binding contract in some jurisdictionspecified therein.
Mediation differs from most other conflict resolution processes by virtue of its simplicity, and in the clarity of its rules. It is employed at all scales from petty civil disputes to global peace talks. It is thus difficult to characterize it independently of these scales or specific jurisdiction (area)s – where ‘Mediation’ may in fact be formally defined and may in fact require specific licenses. There are more specific processes (such as peace process or binding arbitration or mindful mediation) referred to directly in the text.

[edit]Safety, fairness, closure

These broader political methods usually focus on conciliation, preventing future problems, rather than on focused dispute-resolution of one matter.
One can reasonably see mediation as the simplest of many such processes, where no great dispute exists about political context, where jurisdiction has been agreed, whatever process selected the mediator is not in doubt, and there is no great fear that safety, fairness and closure guarantees will be violated by future bad-faith actions.
Assuming some warranty of safety, fairness, and closure, then the process can reasonably be called ‘mediation proper’, and be described thus:

[edit]Post-mediation activities

[edit]Ratification and review

Some mediated agreements require ratification by an external body to which a negotiating party must account — such as a board, council or cabinet. In other situations it may be decided or understood that agreements will be reviewed by lawyers, accountants or other professional advisers after the mediation meeting. Ratification and review provide safeguards for mediating parties. They also provide an opportunity for persons not privy to the dynamics of a mediation and the efforts of the negotiating parties to undermine significant decisions they have made.
In the United States, the implementation of agreements reached in mediation requires tailoring to the mediated subject. For example, successful family and divorce mediations must memorialize an agreement which complies with the statutes of the state in which the parties will implement their mediated agreement. In New York, for example, the New York Domestic Relations Law specifies both technical and substantive requirements with which pre-marital (or pre-nuptial) and post-marital (or post-nuptial) agreements must comply (NY Domestic Relations Law, Sec. 236, Part B).

[edit]Official sanctions

In some situations the sanctions of a court or other external authority must validate a mediation agreement. Thus if a grandparent or other non-parent is granted residence rights in a family dispute, a court counselor will be required to furnish a report to the court on merits of the proposed agreement. Parties to a private mediation may also wish to obtain court sanction for their decisions. Under the Queensland regulatory scheme on court connected mediation, mediators are required to file with a registrar a certificate about the mediation in a form prescribed in the regulations. A party may subsequently apply to a relevant court an order giving effect to the agreement reached. Where court sanction is not obtained, mediated settlements have the same status as any other agreements.

[edit]Referrals and reporting-obligations

Mediators may at their discretion refer one or more parties to psychologists, accountants or social workers for post-mediation professional assistance. Where mediation is provided by a public agency, referrals are made to other authorities such as Centrelink.

[edit]Mediator debriefing

In some situations, a post-mediation debriefing and feedback session is conducted between co-mediators or between mediators and supervisors. It involves a reflective analysis and evaluation of the process. In many community mediation services debriefing is compulsory and mediators are paid for the debriefing session.

[edit]Mediator roles and functions

Mediator functions are classified into a few general categories, each of which necessitates a range of specific interventions and techniques in carrying out a general function.

[edit]Creating favorable conditions for the parties’ decision-making

Mediators can contribute to the settlement of disputes by creating favorable conditions for dealing with them. This can occur through:
  • Providing an appropriate physical environment- this is through selection of neutral venues, appropriate seating arrangements, visual aids and security.
  • Providing a procedural framework- this is through conduct of the various stages of mediation process. As the chair of the proceedings, they can establish basic ground rules, provide order, sequence and continuity. The mediators opening statement provides an opportunity to establish a structural framework, including the mediation guidelines on which the process will be based.
  • Improving the emotional environment- this is a more subtle function and varies among mediations and mediators. They can improve the emotional environment through restricting pressure, aggression and intimidation in the conference room by providing a sense of neutrality and by reducing anxiety among parties.

[edit]Assisting the parties to communicate

People in conflict tend not to communicate effectively and poor communication can cause disputes to occur or escalate. For mediators to encourage communication efficiently, they themselves must be good communicators and practice good speaking and listening skills, pay attention to non-verbal messages and other signals emanating from the context of the mediation.

[edit]Facilitating the parties’ negotiations

Mediators can contribute expertise and experience in all models and styles of negotiation so that the parties are able to negotiate more constructively, efficiently and productively. This function is prominent after the problem-defining stages of mediation and involves mediators bringing direction and finesse to the negotiation efforts of the parties. Mediators can also act as catalysts for creative problem solving, for example by brainstorming or referring to settlement options generated in analogous mediation experiences.

[edit]Functions of the parties

The functions of the parties will vary according to their motivations and skills, the role of legal advisers, the model of mediation, the style of mediator and the culture in which the mediation takes place. Legal requirements may also affect their roles. In New South Wales the Law Society has published A guide to the rights and Responsibilities of participants.

[edit]Preparation

Whether parties enter mediation of their own volition or because legislation obligates them to do so, they prepare for mediation in much the same way they would for negotiations, save that the mediator may supervise and facilitate their preparation. Mediators may require parties to provide position statements, valuation reports and risk assessment analysis. The parties may also be required to consent to an agreement to mediate before preparatory activities commence.

[edit]Disclosure of information

Agreements to mediate, mediation rules, and court-based referral orders may have requirements for the disclosure of information by the parties and mediators may have express or implied powers to direct them to produce documents, reports and other material. In court referred mediations parties usually exchange with each other all material which would be available through discovery or disclosure rules were the matter to proceed to hearing. This would include witness statements, valuations and statement accounts.

[edit]Party participation

The objectives of mediation, and its emphasis on consensual outcomes, imply a direct input from the parties themselves. The mediation system will expect that parties attend and participate in the mediation meeting; and some mediation rules require a party, if a natural person, to attend in person. However, the process assesses party participation in overall terms, so a party failing to participate in the initial stages may make up for this later in the process.

[edit]Choice of mediator

The choice of mediation as a dispute resolution option links closely to the identity of a mediator who conducts it.[citation needed] This follows from the circumstances: different models of mediation exist, mediators have a lot of discretion in a flexible procedure, and the mediator’s professional background and personal style have enormous potential impacts on the nature of the service provided. These factors make the selection of mediators of real practical significance.
The term “choice of mediator” implies a process of deliberation and decision-making. No formal mechanism for objecting to the appointment of particular mediators exists, but in practice the parties could ask mediators to withdraw for reasons of conflict of interest. In community mediation programs the director generally assigns mediators without party involvement. In New South Wales, for example, when the parties cannot agree on the identity of a mediator the registrar contacts a nominating entity, such as the Bar Association which supplies the name of a qualified and experienced mediator.

[edit]Attributes

The following are useful ways of selecting a mediator:
  • Personal attributes – qualities and characteristics which are innate, as opposed to skills and techniques which can be learned and developed. In this concept a number of desirable attributes for mediators include interpersonal skills, patience, empathy, intelligence, optimism and flexibility.
  • Mediation qualifications, experience and background – while some jurisdictions prescribe no generalized qualifications for mediators, in some specific contexts mediators require qualifications prescribed by legislation. In New South Wales, for example, the Family Law Act 1975 (Cth) proscribes qualifications for mediators. Qualifications usually revolve around knowledge of the theory and practice of conflict, negotiation and mediation, mediations skills, and attitudes appropriate for mediation. There are three factors of relevance: experience in practice of mediation, experience in the substantive area of dispute, and personal life experience.
  • the mediator’s training
  • the mediator’s professional background
  • the mediator’s certification and its value
  • the mediation model offered, and whether it suits the case
  • any conflict of interest the mediator may have
  • the mediator’s willingness to allow, and possibly encourage, mediation participants to seek creative solutions
  • the mediator’s fee

[edit]Choice of Mediator: Third party nomination

It is not always the case that a mediator can personally be identified or agreed upon by the parties in advance. Some mediation procedures derive from standard form contracts that routinely stipulate choice of mediator in advance in default of the parties themselves choosing a mediator previously known to them. There is a qualitative difference between clauses that give the appointing body the right to impose such mediator as it may choose and clauses that permit an appointing body to suggest a mediator for the parties to accept or reject. Standard form contracts may choose either form of words. In commercial contracts the willingness of parties to mediate at all may depend on the confidence invested in the nominating body, whether that body is a professional organisation that effectively guarantees that the mediator proffered for mediation is a practising professional operating to the ethical standards of that body or an organisation that itself offers a form of mediation training to a standard of its own designation. These may be “open” lists that any person willing and suitably qualified can apply to join; conversely a private commercial “closed” panel may be one of a highly selective character that is closed except by invitation to persons seeking appointment as mediators. Fees to the appointing body for services supplied will vary depending on what services are provided as part of the mediation process. Not all appointments will incur fees but fee transparency may be looked for in this context.
  • In New South Wales, for example, when the parties cannot agree on the identity of a mediator the registrar contacts a nominating entity, such as the Bar Association which supplies the name of a qualified and experienced mediator.
  • In the UK and internationally Established institutions offering regulation of professionals or acting as providers of dispute resolution training as a primary activity maintain general “open” mediation lists e.g. The Chartered Institute of Arbitrators, the Centre for Dispute Resolution. In the commercial sector; “closed” panels maintained privately co-exist and compete for appointments e.g. Savills Mediation.

[edit]Values of mediation

Mediation contains three aspects: feature, values and objectives. The three aspects, although different, can and do at times overlap in their meaning and use. There are a number of values of mediation including Non Adversarialism, Responsiveness and Self Determination and Party Autonomy.
Each Person, Mediator and Process has values that can be attributed to them. These values are as diverse as Human Nature itself and as such provides for no uniformity amongst the values and on how those values are enforced by each party.
The Non-adversarialism value of mediation is not based on the attitudes of the parties involved, but is based on the actual process of mediation and how it is carried out. To clarify the context of the meaning it is said that Litigation is adversarial as its process must come to a logical conclusion based on a decision made by a presiding judge. Mediation does not always end with a decision.
Responsiveness, another value of mediation, responds to the interests of the parties without the restrictions of the law. It allows the parties to come to their own decisions on what is best for them at the time. Responsiveness shows how the mediation process is informal, flexible and collaborative and is person centered.
Self-determination and party autonomy gives rise to parties gaining the ability to make their own choices on what they will agree on. It gives the parties the ability to negotiate with each other to satisfy their interests, generate some options which could lead to an outcome satisfactory to both parties. This autonomy or independent structure provided by the mediation process removes the need for the presence of professional bodies and turns the responsibility back on to the parties to deal with the issue and hopefully to a satisfactory conclusion.

[edit]Mediation vs Arbitration

Mediation and Arbitration are generally contractually agreed upon substitutes for resolving disputes as opposed to resorting to a court to resolve it. The purpose and goals of Mediation and Arbitration, however, are quite different and often misunderstood.
The purpose of Mediation is to have the parties sit down with a neutral third party who tries to facilitate a monetary or other settlement to the dispute. Neither party has a legal obligation to settle the dispute, nor any statements made during a Mediation are not admissible evidence in the event no settlement is reached. Mediation can be a highly efficient, cost effective tool. It can conclude quickly or it can take several hours as the mediator conducts multiple rounds of shuttle diplomacy between the parties. After many hours the parties feel personally invested in the process and neither wishes to leave without settling the dispute. It is important to remember, however, that because the mediator’s job is to get a settlement, regardless of its terms, it is up to you to determine if you can live with the settlement terms. In the event the Mediation fails and an Arbitration provision is not contained in the contract, you can enforce your rights in a court of law.
Binding Arbitration provisions, on the other hand, are a substitute for the formal process of a court. Binding Arbitration is typically conducted in front of one or three arbitrators and the Arbitration is much like a mini trial with rules of evidence. Arbitration typically proceeds somewhat faster than a case in court, and typically at a somewhat lower cost in attorney time and expense. The result of the Arbitration is final and the parties can rarely successfully appeal an arbitrators’ decision even if it appears to be completely unreasonable or unfair.[14]

[edit]Mediation with arbitration

Mediation has sometimes been utilized to good effect when coupled with arbitration, particularly binding arbitration, in a process called ‘mediation/arbitration’. In this process, if parties are unable to reach resolution through mediation, the mediator becomes an arbitrator, shifting the mediation process into an arbitral one, seeking additional evidence as needed (particularly from witnesses, if any, since witnesses are normally not called upon by a mediator), and finally rendering an arbitral decision.
This process is more appropriate in civil matters where rules of evidence or jurisdiction are not in dispute. It resembles, in some respects, criminal plea-bargaining and Confucian judicial procedure, wherein the judge also plays the role of prosecutor – rendering what, in Western European court procedures, would be considered an arbitral (even ‘arbitrary’) decision.
Mediation/arbitration hybrids can pose significant ethical and process problems for mediators. Many of the options and successes of mediation relate to the mediator’s unique role as someone who wields coercive power over neither the parties nor the outcome. If parties in a mediation are aware the mediator might later need to act in the role of judge, the process could be dramatically distorted. Thankfully, mediation-arbitration often involves using different individuals in the role of mediator and (if needed later) arbitrator, but this is not always the case.

[edit]Mediator liability

Mediators should take necessary precautions to protect themselves, as they are putting themselves in a vulnerable position in terms of liability. Mediators need to be qualified and properly trained before they can mediate a legally binding mediation. In mediation, there are a number of situations in which liability could arise. For example, a mediator could be liable for misleading parties about the process and/or process of alternative dispute resolution. If a mediator inappropriately recommends mediation as a dispute resolution method, those involved can hold the mediator liable. A breach of confidentiality on the mediators behalf could result in liability. These situations can all lead to court proceedings, although this is quite uncommon. Only one case has been recorded in Australia so far.
Three areas exist in which liability can arise for the mediator:
  1. Liability in Contract
  2. Liability in Tort
  3. Liability for Breach of Fiduciary Obligations.
Liability in Contract arises if the Mediator breaches contract between themselves and one or both of the parties. This can be in written or verbal contract. There are two forms of breach – failure to perform and anticipatory breach. The latter is harder to prove because the breach has not yet happened. If the breach is proven in can result in damages awarded. The damages awarded are generally compensatory in nature, very rarely pecuniary. Limitations on liability include causation (Proving liability requires a showing of actual causation).
Liability in Tort arises if a mediator influences a party in any way (compromising the integrity of the decision), defames a party, breaches confidentiality, or most commonly, is liable in negligence. To be awarded damages, the party must show suffering of actual damage, and must show that the mediator’s actions (and not the party’s actions) are the actual cause of the damage.
Liability for Breach of Fiduciary Obligations can occur if parties misconceive their relationship with the Mediator for something other than completely neutral. The mediator has the role of remaining neutral at all times, but the parties could misinterpret the relationship to be a fiduciary one.

[edit]Mediators’ liability in Tapoohi v Lewenberg (Australia)

Tapoohi v Lewenberg provides the only case in Australia to date that has set a precedent for mediators’ liability.
The case involved two sisters who settled a deceased estate via mediation. Only one sister attended the mediation in person: the other participated via telephone with her lawyers present. A deal was struck up and an agreement was executed by the parties. At the time it was orally expressed that before the final settlement was to occur there was requirement for taxation advise to be sought as such a large transfer of property would encompass some capital gains tax to be paid.
Tapoohi had to pay Lewenberg $1.4 million dollars in exchange for some transfers of land. One year later, when the capital gains tax was recognized by Tapoohi she filed proceedings against her sister, lawyers and the mediator based on the fact that the agreement was subject to further advice being sought in relation to taxation.
The mediator’s agreement stage took place verbally without any formal agreement: only a letter stating his appointment. Tapoohi, a lawyer herself, alleged that the mediator breached his contractual duty, bearing in mind the lack of any formal agreement; and further alleged several breaches on his tortuous duty of care.
Although the court dismissed the summary judgment, the case shows that the mediators owe a duty of care to all parties and that parties can hold them liable should they breach that duty of care. Habersberger J held that it “not beyond argument” that the mediator could be in breach of contractual and tortious duties. Such claims were required to be made out at a hearing but a trial court.[clarification needed]
This case emphasizes the need for formal mediation-agreements including clauses that would limit mediators’ liability.

[edit]Mediation in the United States

Note the differences between the legal definition of civil mediation in the United States of America and mediation in other countries. Compared with the situation elsewhere, mediation appears more “professionalized” in the United States,[citation needed] where State laws regarding the use of lawyers as opposed to mediators may differ widely. One can best understand these differences in a more global context of variances between countries.
Within the United States, the laws governing mediation vary greatly on a state-by-state basis. Some states have fairly sophisticated laws concerning mediation, including clear expectations for certification, ethical standards, and protections preserving the confidential nature of mediation by ensuring that mediators need not testify in a case they’ve worked on. However, even in states that have such developed laws around mediation, those law only relates to mediators working within the court system. Community and commercial mediators practising outside the court system may very well not have these same sorts of legal protections.
Professional mediators often consider the option of liability insurance — traditionally marketed through professional dispute-resolution organizations.

[edit]Without-prejudice privilege

The without-prejudice privilege in common law terms denotes that when in honest attempts to reach some type of settlement any offers or admissions cannot be used in a court of law when the subject matter is the same. This further applies to negotiations that are made as part of the mediation process. There are however some exceptions to the without privilege rule.
The without prejudice privilege emerges clearly from the description of the case AWA Ltd v Daniels (t/as Deloitte Haskins and Sells). AWA Ltd commenced proceedings in the Supreme Court of NSW against Daniels for failing to audit their accounts properly. Mediation was ordered and failed. But during the mediationAWA Ltd disclosed that they had a document that gave its directors full indemnity with respect to any legal proceedings. AWA Ltd was under the impression that they gave this information without prejudice and therefore it could not be used in a court of law. When mediation failed litigation resumed.
During the litigation Daniels asked for a copy of the indemnity deed. AWA Ltd claimed privilege, but the presiding Rolfe J, stated that privilege was not applicable as the document was admissible. Further to this Rolfe, J added that Daniels was “only seeking to prove a fact which was referred to in the mediation”.
The without-prejudice privilege does not apply if it has been excluded by either party or if the rights to the privilege has been waived in proceedings and it must be remembered that although a mediation is private and confidential, the disclosure of privileged information in the presence of a mediator does not represent a waiver of the privilege.

[edit]Mediation in politics and in diplomacy

Diplomats typically engage in mediation as one of their most important activities. Some people[who?] consider that it should be a relevant quality of democratic politicians, given that usually in both these fields the explicitation of the respective mansions (on a formal basis, at least) require the achievement of agreements between separate entities of which the diplomat or the politician are third parties by definition; Hobbes and Bodin found that the organs of a state have a mediating power and function.
These activities are usually performed in order to get, on the subjective point of view of this mediator, a recompense that might be in the form of a direct economical advantage, a political advantage, an increased international prestige or influence.

[edit]One of many non-violent methods of dispute resolution

In politics and in diplomacy, mediation obviously offers a non-violent method of dispute resolution (some indeed argue that other methods would be many), although it is usually assumed or included in definitions of other methods.
Some theorists, notably Rushworth Kidder, have claimed that mediation is the foundation of a new (some say ‘postmodern‘) ethics – and that it sidesteps traditional ethical issues with pre-defined limits of morality.
Others[who?] claim that mediation is a form of harms reduction or de-escalation, especially in its large-scale application in peace process and similarnegotiation, or the bottom-up way it is performed in the peace movement where it is often called mindful mediation. In this form, it would be derived from methods of Quakers in particular.

[edit]Mediation and industrial relations

According to Boulle (2005, p. 286), conciliation and ADR began in industrial relations in Australia long before the arrival of the modern ADR movement. One of the first statutes passed by the Commonwealth parliament was the Conciliation and Arbitration Act 1904 (Cth). This allowed the Federal Government to pass laws on conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one state. In Australian industrial relations, conciliation has been the most prominently used form of ADR, and is generally far removed from modern mediation.
Significant changes in state policy concerning Australian industrial relations took place over the decade 1996 to 2007. The Howard government, with the introduction of the Workplace Relations Act 1996 (Cth), sought to shift the industrial system away from a collectivist approach, where unions and the AIRC had strong roles, to a more decentralized system of individual bargaining between employers and employees (Bamber et al., 2000, p. 43). The WRA Act 1996 (Cth) diminished the traditional role of the AIRC by placing the responsibility of resolving disputes at the enterprise level (Boulle, 2005, p. 287). This allowed mediation to be used to resolve industrial relations disputes instead of the traditionally used conciliation.
The new ‘Work Choices’ Amendment came into effect in March 2006, and included a compulsory model dispute-resolution process that doesn’t involve the AIRC. Mediation and other ADR processes have been encouraged by the government as a better option than the services provided by the AIRC. The government has realized the benefits of mediation to include the following (Van Gramberg, 2006, p. 11):
  • Mediation is cost saving
  • Avoids polarization of parties
  • Is educative
  • Probes wider issues than the formal court system
  • Provides greater access to justice
  • Gives disputants more control over the dispute process

[edit]The workplace and mediation

Mediation emerged on the industrial relations landscape in the late 1980s due to a number of economic and political factors[which?], which then induced managerial initiatives. According to Van Gramberg (2006, p. 173) these changes have come from the implementation of human resource management policies and practices, which focuses on the individual worker, and rejects all other third parties such as unions, and the Australian Industrial relations Commission (AIRC). HRM together with the political and economic changes undertaken by the Howard government has created an environment where private ADR can be fostered in the workplace (Bamber et al., 2000, p. 45). The decline of unionism and the encouragement of individualization in the workplace have encouraged the growth of private mediations. This is demonstrated in the industries with the lowest union rates such as in the private business sector having the greatest growth of mediation (Van Gramberg, 2006, p. 174).
The Howard government’s Work Choices Act, which came into effect on March 2006, made further legislative changes to deregulate the industrial relations system. A key element of the new changes was to weaken the powers of the AIRC in conciliation and arbitration by installing and encouraging private mediation in competition with the services provided by the AIRC.
Workplace conflicts can cover a great variety of disputes. For example disputes between staff members, allegations of harassment, contractual disputes relating to the terms and conditions of employment and workers-compensation claims (Boulle, 2005, p. 298). At large, workplace disputes are between people who have an ongoing working relationship within a closed system, which indicate that mediation or a workplace investigation would be appropriate as a means of a dispute resolution process. However in organisations there are many complex relationships, involving hierarchy, job security and competitiveness that make mediation a difficult task (Boulle, 2005, p. 298).

[edit]Conflict-management

Society perceives conflict as something that gets in the way of progress, as a negative symptom of a relationship that one should cure as quickly as possible (Boulle, 2005, p. 87). However within the mediation profession conflict is seen as a fact of life and when properly managed it can have many benefits for the parties and constituents (Bagshaw, 1999, p. 206, Boulle, 2005, p. 87; Schellenberg, Parks-Savage, & Rehfuss, 2007). The benefits of conflict include the opportunity to renew relationships and make positive changes for the future. Mediation should be a productive process, where conflict can be managed and expressed safely (Bradford, 2006, p. 148). It is the mediator’s responsibility to let the parties express their emotions entailed in conflict safely. Allowing the parties to express these emotions may seem unhelpful in resolving the dispute, but if managed constructively these emotions may help towards a better relationship between the parties in the future.

[edit]Measuring the effectiveness of conflict management

The ADR field has felt a need to define the effectiveness of dispute-resolution in a broad manner, including more than whether there was a settlement (Boulle, 2005, p. 88). Mediation as a field of dispute resolution recognized there was more to measuring effectiveness, than a settlement. Mediation recognised in its own field that party satisfaction of the process and mediator competence could be measured. According to Boulle (2005, p. 88) surveys of those who have participated in mediation reveal strong levels of satisfaction of the process.
Benefits of mediation may include:
  • discovering parties’ interests and priorities
  • healthy venting of emotions in a protected environment
  • an agreement to talk about a set agenda
  • identifying roles of the constituents, such as relatives and professional advisors
  • knowledge of a constructive dispute resolution for use in a future dispute

[edit]Confidentiality and mediation

Confidentiality emerges as a powerful and attractive feature of mediation (Van Gramberg, 2006, p. 38). The private and confidential aspect of mediation is in contrast with the courts and tribunals which are open to the public, and kept on record. Privacy is a big motivator for people to choose mediation over the courts or tribunals. Although mediation is promoted with confidentiality being one of the defining features of the process, it is not in reality as private and confidential as often claimed (Boulle, 2005, p. 539). In some circumstances the parties agree that the mediation should not be private and confidential in parts or in whole. Concerning the law there are limits to privacy and confidentiality, for example if their mediation entails abuse allegations, the mediator must disclose this information to the authorities. Also the more parties in a mediation the less likely it will be to maintain all the information as confidential. For example some parties may be required to give an account of the mediation to outside constituents or authorities (Boulle, 2005, p. 539).
Two competing principles affect the confidentiality of mediations. One principle involves upholding confidentiality as means to encourage people to settle out of the courts and avoid litigation, while the second principle states that all related facts in the mediation should be available to the courts.
A number of reasons exist for keeping mediation private and confidential; these include:
  • it makes the mediation appealing
  • it provides a safe environment to disclose information and emotions
  • confidentiality makes mediation more effective by making parties talk realistically
  • confidentiality upholds mediators’ reputations, as it reinforces impartiality
  • confidentiality makes agreement more final, as there is little room to seek review

[edit]Global relevance

The rise of international trade lawcontinental trading blocs, the World Trade Organization (and its opposing anti-globalization movement), and use of theInternet, among other factors, seem to suggest[original research?] that legal complexity has started to reach an intolerable and undesirable point. There may be no obvious way to determine which jurisdiction has precedence over which other, and there may be substantial resistance to settling a matter in any one place.
Accordingly, mediation may come into more widespread use, replacing formal legal and judicial processes sanctified by nation-states. Some people, like members of the anti-globalization movement, believe such formal processes have quite thoroughly failed to provide real safety and closure guarantees that are pre-requisite to uniform rule of law.
Following an increasing awareness of the process, and a wider notion of its main aspects and eventual effects, some commentators[who?] in recent times[when?] have frequently[citation needed] proposed mediation for the resolution of international disputes, with attention to belligerent situations too.
However, as mediation ordinarily needs participation by the interested parties and it would be very difficult to impose it, in case one of the parts refuses this process it cannot be a solution.

[edit]Fairness

As noted, mediation can only take place in an atmosphere where there is some agreement on safety, fairness and closure, usually provided by nation-states and their legal systems.[citation needed] But increasingly, disputes transcend international borders and include many parties who may be in unequal-power relationships.
In such circumstances, with many parties afraid to be identified or to make formal complaints, terminology or rules of standing or evidence slanted against some groups, and without power to enforce even “legally binding” contracts, some conclude that the process of mediation would not reasonably be said to be “fair”.
Accordingly, even when a party offers to mediate and a mediator attempts to make the process fair, mediation itself might not operate as a fair process. In such cases, parties may pursue other means of dispute resolution.
From a more technical point of view, however, one must recall that the parties must require mediation, and very seldom can it be imposed by “non-parties” upon the parties. Therefore, in presence of entities that cannot be clearly identified, and that practically don’t claim for their recognition as “parties”, the professional experience of a mediator could only apply to a proposal of definition, that besides would always miss the constitutional elements of a mediation. Moreover, in such circumstances, the counter-party of these eventual entities would very likely deny any prestige of ‘party’ to the opponent, this not consenting any kind of treaty (in a correct mediation).
More generally, given that mediation ordinarily produces agreements containing elements to enforce the pacts with facts that can grant its effectiveness, note that other mechanisms apart from legal systems may ensure protection of the pacts: modern mediation frequently tends to define economic compensations and warranties too, generally considered quicker and more effective. The concrete ‘power’ of an agreement is classically found in the equilibre of the pact, in the sincere conciliation of respective interests and in the inclusion of measures that would make the rupture of the pact very little convenient for the unfaithful party. Pacts that don’t have such sufficient warranties are only academically effects of a mediation, but would never respect the deontology of the mediator.

[edit]See also

[edit]References

  1. ^ http://cfrmediation.com/a-short-history-of-mediation/
  2. ^ http://cfrmediation.com/a-short-history-of-mediation/
  3. ^ Simkin, W. E., (1971); Mediation and the Dynamics of Collective Bargaining; Bureau of National Affairs Books, Washington DC, ISBN 0871791277
  4. ^ The Institute of Arbitrators and Mediators, Australia, retrieved 2007-11-24
  5. ^ See, http://www.synergymedmw.com, http://www.mediation.com, http://www.mediate4you.com and http://www.mediate4u.info for more information on the mediation process.
  6. ^ Code de la Médiation pour l’orientation de la médiation, Agnès Tavel, Médiateurs Editeurs, 2009.
  7. ^ http://www.nadrac.gov.au/www/nadrac/nadrac.nsf/Page/WhatisADR_NationalMediatorAccreditationSystem_NationalMediatorAccreditationSystem
  8. ^ Cremin, H. (2007) Peer mediation: citizenship and social inclusion revisited. Open University Press
  9. a b Noaks, J. & Noaks, L. (2009). “School-based peer mediation as a strategy for social inclusion”. Pastoral Care In Education 27 (1): 53–61.
  10. ^ Cremin (2007, p. 119)
  11. ^ Gerber, S 1999, ‘Does peer mediation really work?’, Professional School Counseling, 2, 3, 169
  12. ^ Zutter, Deborah. Preliminary Mediation Practices. Bond University, Australia:Unpublished Thesis, 2004.
  13. ^ “What is Family Mediation?”. Retrieved 5 October 2011.
  14. ^ Mediation vs Arbitration – Mediation, Arbitration, Divorce and ADR Services, retrieved 2010-08-27
http://www.thenewschoolcounselor.com – Cultivating Performance”

[edit]Bibliography

  • Agardy, Peter (2009), ‘Mediation and the insolvency practitioner,’ Insolvency Law Journal, Thomson Reuters, Vol 17. No.3, September, Pages 135-146.
  • Boulle, L. (2005), Mediation: Principles Processes Practice, Australia, LexisNexis Butterworths.
  • Cremin, H. (2007), Peer Mediation: Citizenship and Social Inclusion in Action. Maidenhead: Open University Press.
  • Charlton, R. (2000), Dispute Resolution Guidebook. Star Printery Pty Ltd, Erskineville NSW.(2nd edition) Ligare Pty Ltd, Riverwood NSW.
  • Charlton, R. & Dewdney, M. (2004), The Mediator’s Handbook. Skills and Strategies for Practitioners.
  • Domenici, Kathy, & Littlejohn, Stephen W. (2001), Mediation empowerment in conflict management. Prospect Heights, IL: Waveland Press, Inc.
  • (French) Fathi Ben Mrad: Sociologie des pratiques de médiation : Entre principes et compétences,Paris, France, édition L’Harmattan, 2002. – ISBN 2-7475-2968-1
  • Flemisch, Christiane A.: “Streitbeilegung im internationalen Geschäft. Einführung in die Mediation als Methode der Streitbeilegung”, in Außenwirtschaftliche Praxis (AW-Prax), 2006, Heft 2.
  • Flemisch, Christiane A.: Wirtschaftsmediation im Zeitalter der Globalisierung – Besonderheiten bei interkulturellen Wirtschaftsmediationen, in IDR, 2006 Heft 1.
  • Folberg, J. & Taylor, A. (1984) Mediation: A comprehensive guide to resolving conflicts without litigation, San Francisco, Jossey-Bass Publishers.
  • (French) Lascoux Jean Louis, 2001, 2007. Pratique de la mediation. esf editeur. Paris, 4°ed. 2007
  • (French) Lascoux Jean Louis, 2008. Et tu deviendras médiateur et peut-être philosophe. Ed. Médiateurs. Bordeaux, 2008
  • Larsson, Liv (2011). A Helping Hand, Mediation with Nonviolent Communication. Friare Liv Konsult. pp. 258. ISBN 9197667277.
  • McConnell, J. A. (2001): Mindful mediation: A handbook for buddhist peacemakers. Dehiwala, Buddhist Cultural Centre.
  • Palermo G., (2005) (Italy), La violenza intrafamiliare tra diritto e mediazione, La città del sole, Napoli, ISBN 88-8292-285-5
  • Palermo G. (2009) (Italy), Prospettive socio-giuridiche della mediazione penale in Italia. Analisi comparativa con la Spagna, Nuova edizione ampliata ed aggiornata, Edizioni Labrys, ISBN 9788895931036
  • Parselle, Charles (2005) The Complete Mediator. New York: Weisberg Publications.
  • Schellenberg, R., Parks-Savage, A., & Rehfuss, M. (2007). Reducing levels of elementary school violence with peer mediation. Professional School Counseling, 10, 475-481.
  • Sourdin, T. (2002) Alternative Dispute Resolution, Pyrmont NSW, Lawbook Co.
  • Spencer, D. & Altobelli, T. 2005. Dispute Resolution in Australia. Cases, Commentary and Materials. Ligare Pty Ltd, Riverwood NSW.
  • (French) Tavel Agnès et Jean-Louis Lascoux. Code de la Médiation annoté et comenté pour orienter la Médiation, Médiateurs Editeurs, Bordeaux France, 2008–2009
  • Winslade, J. & Monk, G. 2000. Narrative Mediation: A New Approach to Conflict Resolution. San Francisco: Jossey-Bass Publishers.
  • Zhao, X., Lynch, J. G., & Chen, Q. (2010) Reconsidering Baron and Kenny: Myths and Truths about Mediation Analysis. Journal of Consumer Research, 37, 197-206. (Preprint available at: http://faculty.fuqua.duke.edu/~jglynch/Working%20Papers/Zhao%20Lynch%20Chen%20JCR_Essay_Submission.pdf)

[edit]Notes

Conciliation

http://en.wikipedia.org/wiki/Conciliation

From Wikipedia, the free encyclopedia
Conciliation is an alternative dispute resolution (ADR) process whereby the parties to a dispute (including future interest disputes) agree to utilize the services of a conciliator, who then meets with the parties separately in an attempt to resolve their differences. They do this by lowering tensions, improving communications, interpreting issues, providing technical assistance, exploring potential solutions and bringing about a negotiated settlement.
Conciliation differs from arbitration in that the conciliation process, in and of itself, has no legal standing, and the conciliator usually has no authority to seek evidence or call witnesses, usually writes no decision, and makes no award.
Conciliation differs from mediation in that the main goal is to conciliate, most of the time by seeking concessions. In mediation, the mediator tries to guide the discussion in a way that optimizes parties needs, takes feelings into account and reframes representations.
In conciliation the parties seldom, if ever, actually face each other across the table in the presence of the conciliator.

[edit]Effectiveness

Recent studies in the processes of negotiation have indicated the effectiveness of a technique that deserves mention here. A conciliator assists each of the parties to independently develop a list of all of their objectives (the outcomes which they desire to obtain from the conciliation). The conciliator then has each of the parties separately prioritize their own list from most to least important. He/She then goes back and forth between the parties and encourages them to “give” on the objectives one at a time, starting with the least important and working toward the most important for each party in turn. The parties rarely place the same priorities on all objectives, and usually have some objectives that are not listed by the other party. Thus the conciliator can quickly build a string of successes and help the parties create an atmosphere of trust which the conciliator can continue to develop.
Most successful conciliators are highly skilled negotiators. Some conciliators operate under the auspices of any one of several non-governmental entities, and for governmental agencies such as the Federal Mediation and Conciliation Service in the United States.

[edit]Historical Conciliation

Historical conciliation is an applied conflict resolution approach that utilizes historical narratives to positively transform relations between societies in conflicts. Historical conciliation can utilize many different methodologies, including mediationsustained dialogue, apologies, acknowledgement, support of public commemoration activities, and public diplomacy.
Historical Conciliation is not an excavation of objective facts. The point of facilitating historical questions is not to discover all the facts in regard to who was right or wrong. Rather, the objective is to discover the complexity, ambiguity, and emotions surrounding both dominant and non-dominant cultural and individual narratives of history. It is also not a rewriting of history. The goal is not to create a combined narrative that everyone agrees upon. Instead, the aim is to create room for critical thinking and more inclusive understanding of the past and conceptions of “the other.”
Conflicts that are addressed through historical conciliation have their roots in conflicting identities of the people involved. Whether the identity at stake is their ethnicity, religion or culture, it requires a comprehensive approach that takes people’s needs, hopes, fears, and concerns into account.

[edit]Japan

Japanese law makes extensive use of conciliation (調停 chōtei?) in civil disputes. The most common forms are civil conciliation and domestic conciliation, both of which are managed under the auspices of the court system by one judge and two non-judge “conciliators.”
Civil conciliation is a form of dispute resolution for small lawsuits, and provides a simpler and cheaper alternative to litigation. Depending on the nature of the case, non-judge experts (doctors, appraisers, actuaries, and so on) may be called by the court as conciliators to help decide the case.
Domestic conciliation is most commonly used to handle contentious divorces, but may apply to other domestic disputes such as the annulment of a marriage or acknowledgment of paternity. Parties in such cases are required to undergo conciliation proceedings and may only bring their case to court once conciliation has failed.

Arbitration

http://en.wikipedia.org/wiki/Arbitration

From Wikipedia, the free encyclopedia
Arbitration, a form of alternative dispute resolution (ADR), is a legal technique for the resolution of disputesoutside the courts, where the parties to a dispute refer it to one or more persons (the “arbitrators”, “arbiters” or “arbitral tribunal“), by whose decision (the “award“) they agree to be bound. It is a settlement technique in which a third party reviews the case and imposes a decision that is legally binding for both sides.[1] Other forms of ADR include mediation[2] (a form of settlement negotiation facilitated by a neutral third party) and non-binding resolution by experts. Arbitration is often used for the resolution of commercial disputes, particularly in the context of international commercial transactions. The use of arbitration is also frequently employed in consumer and employment matters, where arbitration may be mandated by the terms of employment or commercial contracts.
Arbitration can be either voluntary or mandatory (although mandatory arbitration can only come from a statute or from a contract that is voluntarily entered into, where the parties agree to hold all disputes to arbitration, without knowing, specifically, what disputes will ever occur) and can be either binding or non-binding. Non-binding arbitration is, on the surface, similar to mediation. However, the principal distinction is that whereas a mediator will try to help the parties find a middle ground on which to compromise, the (non-binding) arbitrator remains totally removed from the settlement process and will only give a determination of liability and, if appropriate, an indication of the quantum of damages payable.
Arbitration is a proceeding in which a dispute is resolved by an impartial adjudicator whose decision the parties to the dispute have agreed, or legislation has decreed, will be final and binding. Arbitration is not the same as:

Contents

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[edit]Advantages and disadvantages

Parties often seek to resolve their disputes through arbitration because of a number of perceived potential advantages over judicial proceedings:
  • when the subject matter of the dispute is highly technical, arbitrators with an appropriate degree of expertise can be appointed (as one cannot “choose the judge” in litigation)
  • arbitration is often faster than litigation in court[citation needed]
  • arbitration can be cheaper and more flexible for businesses[citation needed]
  • arbitral proceedings and an arbitral award are generally non-public, and can be made confidential[5]
  • in arbitral proceedings the language of arbitration may be chosen, whereas in judicial proceedings the official language of the country of the competent court will be automatically applied
  • because of the provisions of the New York Convention 1958, arbitration awards are generally easier to enforce in other nations than court judgments
  • in most legal systems there are very limited avenues for appeal of an arbitral award, which is sometimes an advantage because it limits the duration of the dispute and any associated liability
Some of the disadvantages include:
  • arbitration may become highly complex[citation needed]
  • arbitration may be subject to pressures from powerful law firms representing the stronger and wealthier party[citation needed]
  • arbitration agreements are sometimes contained in ancillary agreements, or in small print in other agreements, and consumers and employees often do not know in advance that they have agreed to mandatory binding pre-dispute arbitration by purchasing a product or taking a job
  • if the arbitration is mandatory and binding, the parties waive their rights to access the courts and to have a judge or jury decide the case
  • in some arbitration agreements, the parties are required to pay for the arbitrators, which adds an additional layer of legal cost that can be prohibitive, especially in small consumer disputes[citation needed]
  • in some arbitration agreements and systems, the recovery of attorneys’ fees is unavailable, making it difficult or impossible for consumers or employees to get legal representation[citation needed]; however most arbitration codes and agreements provide for the same relief that could be granted in court
  • if the arbitrator or the arbitration forum depends on the corporation for repeat business, there may be an inherent incentive to rule against the consumer or employee[citation needed]
  • there are very limited avenues for appeal, which means that an erroneous decision cannot be easily overturned
  • although usually thought to be speedier, when there are multiple arbitrators on the panel, juggling their schedules for hearing dates in long cases can lead to delays
  • in some legal systems, arbitrary awards have fewer enforcement options than judgments; although in the United States arbitration awards are enforced in the same manner as court judgments and have the same effect
  • arbitrators are generally unable to enforce interlocutory measures against a party, making it easier for a party to take steps to avoid enforcement of member or a small group of members in arbitration due to increasing legal fees, without explaining to the members the adverse consequences of an unfavorable ruling
  • rule of applicable law is not necessarily binding on the arbitrators, although they cannot disregard the law[citation needed]
  • discovery may be more limited in arbitration or entirely nonexistent
  • the potential to generate billings by attorneys may be less than pursuing the dispute through trial
  • unlike court judgments, arbitration awards themselves are not directly enforceable. A party seeking to enforce an arbitration award must resort to judicial remedies, called an action to “confirm” an award
  • although grounds for attacking an arbitration award in court are limited, efforts to confirm the award can be fiercely fought[citation needed], thus necessitating huge legal expenses that negate the perceived economic incentive to arbitrate the dispute in the first place.

[edit]Arbitrability

By their nature, the subject matter of some disputes is not capable of arbitration. In general, two groups of legal procedures cannot be subjected to arbitration:
  • Procedures which necessarily lead to a determination which the parties to the dispute may not enter into an agreement upon:[6] Some court procedures lead to judgments which bind all members of the general public, or public authorities in their capacity as such, or third parties, or which are being conducted in the public interest. For example, until the 1980s, antitrust matters were not arbitrable in the United States.[7] Matters relating to crimesstatus and family law are generally not considered to be arbitrable, as the power of the parties to enter into an agreement upon these matters is at least restricted. However, most other disputes that involve private rights between two parties can be resolved using arbitration. In some disputes, parts of claims may be arbitrable and other parts not. For example, in a dispute over patent infringement, a determination of whether a patent has been infringed could be adjudicated upon by an arbitration tribunal, but the validity of a patent could not: As patents are subject to a system of public registration, an arbitral panel would have no power to order the relevant body to rectify any patent registration based upon its determination.
  • Some legal orders exclude or restrict the possibility of arbitration for reasons of the protection of weaker members of the public, e.g. consumers. Examples: German law excludes disputes over the rental of living space from any form of arbitration[8], while arbitration agreements with consumers are only considered valid if they are signed by either party,[9] and if the signed document does not bear any other content than the arbitration agreement.[10]

[edit]Arbitration agreement

See also: Arbitration clause
In theory, arbitration is a consensual process; a party cannot be forced to arbitrate a dispute unless he agrees to do so. In practice, however, many fine-print arbitration agreements are inserted in situations in which consumers and employees have no bargaining power. Moreover, arbitration clauses are frequently placed within sealed users’ manuals within products, within lengthy click-through agreements on websites, and in other contexts in which meaningful consent is not realistic. Such agreements are generally divided into two types:
  • agreements which provide that, if a dispute should arise, it will be resolved by arbitration. These will generally be normal contracts, but they contain anarbitration clause
  • agreements which are signed after a dispute has arisen, agreeing that the dispute should be resolved by arbitration (sometimes called a “submission agreement”)
The former is the far more prevalent type of arbitration agreement. Sometimes, legal significance attaches to the type of arbitration agreement. For example, in certain Commonwealth countries, it is possible to provide that each party should bear their own costs in a conventional arbitration clause, but not in a submission agreement.
In keeping with the informality of the arbitration process, the law is generally keen to uphold the validity of arbitration clauses even when they lack the normal formal language associated with legal contracts. Clauses which have been upheld include:
  • “arbitration in London – English law to apply”[11]
  • “suitable arbitration clause”[12]
  • “arbitration, if any, by ICC Rules in London”[13]
The courts have also upheld clauses which specify resolution of disputes other than in accordance with a specific legal system. These include provision indicating:
  • that the arbitrators “must not necessarily judge according to the strict law but as a general rule ought chiefly to consider the principles of practical business”[14]
  • “internationally accepted principles of law governing contractual relations”[15]
Agreements to refer disputes to arbitration generally have a special status in the eyes of the law. For example, in disputes on a contract, a common defence is to plead the contract is void and thus any claim based upon it fails. It follows that if a party successfully claims that a contract is void, then each clause contained within the contract, including the arbitration clause, would be void. However, in most countries, the courts have accepted that:
  1. a contract can only be declared void by a court or other tribunal; and
  2. if the contract (valid or otherwise) contains an arbitration clause, then the proper forum to determine whether the contract is void or not, is the arbitration tribunal.[16]
Arguably, either position is potentially unfair; if a person is made to sign a contract under duress, and the contract contains an arbitration clause highly favourable to the other party, the dispute may still referred to that arbitration tribunal.[citation needed] Conversely a court may be persuaded that the arbitration agreement itself is void having been signed under duress. However, most courts will be reluctant to interfere with the general rule which does allow for commercial expediency; any other solution (where one first had to go to court to decide whether one had to go to arbitration) would be self defeating.

[edit]Sources of law

States regulate arbitration through a variety of laws. The main body of law applicable to arbitration is normally contained either in the national Private International Law Act (as is the case in Switzerland) or in a separate law on arbitration (as is the case in England). In addition to this, a number of national procedural laws may also contain provisions relating to arbitration.
By far the most important international instrument on arbitration law is the 1958 New York Convention on Recognition and Enforcement of Foreign Arbitral Awards. Some other relevant international instruments are:
  • The Geneva Protocol of 1923
  • The Geneva Convention of 1927
  • The European Convention of 1961
  • The Washington Convention of 1965 (governing settlement of international investment disputes)
  • The UNCITRAL Model Law (providing a model for a national law of arbitration)
  • The UNCITRAL Arbitration Rules (providing a set of rules for an ad hoc arbitration)

[edit]Arbitral tribunal

The term arbitral tribunal is used to denote the arbitrator or arbitrators sitting to determine the dispute. The composition of the arbitral tribunal can vary enormously, with either a sole arbitrator sitting, two or more arbitrators, with or without a chairman or umpire, and various other combinations.
In most jurisdictions, an arbitrator enjoys immunity from liability for anything done or omitted whilst acting as arbitrator unless the arbitrator acts in bad faith.
Arbitrations are usually divided into two types:
  • ad hoc arbitrations and administered arbitrations.
In ad hoc arbitrations, the arbitral tribunals are appointed by the parties or by an appointing authority chosen by the parties. After the tribunal has been formed, the appointing authority will normally have no other role and the arbitation will be managed by the tribunal.
In administered arbitration, the arbitration will be administered by a professional arbitration institution providing arbitration services, such as the LCIA in London, or the ICC in Paris, or the American Arbitration Association in the United States. Normally the arbitration institution also will be the appointing authority.
Arbitration institutions tend to have their own rules and procedures, and may be more formal. They also tend to be more expensive, and, for procedural reasons, slower.[17]

[edit]Duties of the tribunal

The duties of a tribunal will be determined by a combination of the provisions of the arbitration agreement and by the procedural laws which apply in the seat of the arbitration. The extent to which the laws of the seat of the arbitration permit “party autonomy” (the ability of the parties to set out their own procedures and regulations) determines the interplay between the two.
However, in almost all countries the tribunal owes several non-derogable duties. These will normally be:
  • to act fairly and impartially between the parties, and to allow each party a reasonable opportunity to put their case and to deal with the case of their opponent (sometimes shortened to: complying with the rules of “natural justice“); and
  • to adopt procedures suitable to the circumstances of the particular case, so as to provide a fair means for resolution of the dispute.[18]

[edit]Arbitral awards

Although arbitration awards are characteristically an award of damages against a party, in many jurisdictions tribunals have a range of remedies that can form a part of the award. These may include:
  1. payment of a sum of money (conventional damages)
  2. the making of a “declaration” as to any matter to be determined in the proceedings
  3. in some[who?] jurisdictions, the tribunal may have the same power as a court to:
    1. order a party to do or refrain from doing something (“injunctive relief“)
    2. to order specific performance of a contract
    3. to order the rectification, setting aside or cancellation of a deed or other document.
  4. In other jurisdictions, however, unless the parties have expressly granted the arbitrators the right to decide such matters, the tribunal’s powers may be limited to deciding whether a party is entitled to damages. It may not have the legal authority to order injunctive relief, issue a declaration, or rectify a contract, such powers being reserved to the exclusive jurisdiction of the courts.

[edit]Enforcement of arbitration awards

One of the reasons that arbitration is so popular in international trade as a means of dispute resolution, is that it is often easier to enforce an arbitration award in a foreign country than it is to enforce a judgment of the court.
Under the New York Convention 1958, an award issued a contracting state can generally be freely enforced in any other contracting state, only subject to certain, limited defenses.
Only foreign arbitration awards can be subject to recognition and enforcement pursuant to the New York Convention. An arbitral decision is foreign where the award was made in a state other than the state of recognition or where foreign procedural law was used.[19]
Virtually every significant commercial country in the world is a party to the Convention, but relatively few countries have a comprehensive network for cross-border enforcement of judgments of the court.
The other characteristic of cross-border enforcement of arbitration awards that makes them appealing to commercial parties is that they are not limited to awards of damages. Whereas in most countries only monetary judgments are enforceable in the cross-border context, no such restrictions are imposed on arbitration awards and so it is theoretically possible (although unusual in practice) to obtain an injunction or an order for specific performance in an arbitration proceeding which could then be enforced in another New York Convention contracting state.
The New York Convention is not actually the only treaty dealing with cross-border enforcement of arbitration awards. The earlier Geneva Convention on the Execution of Foreign Arbitral Awards 1927 [1] remains in force, but the success of the New York Convention means that the Geneva Convention is rarely utilized in practice.
Article V of the New York Convention provides an exhaustive list of grounds on which enforcement can be challenged. These are generally narrowly construed by the courts in arbitration centres to uphold the pro-enforcement bias of the Convention.

[edit]Arbitration with sovereign governments

Certain international conventions exist in relation to the enforcement of awards against states.
  • The Washington Convention 1965 relates to settlement of investment disputes between states and citizens of other countries. The Convention created theInternational Centre for Settlement of Investment Disputes (or ICSID). Compared to other arbitration institutions, relatively few awards have been rendered under ICSID.[20]
  • The Algiers Declaration of 1981 established the Iran-US Claims Tribunal to adjudicate claims of American corporations and individuals in relation to expropriated property during the Islamic revolution in Iran in 1979. The tribunal has not been a notable success, and has even been held by an English court to be void under its own governing law.[21]

[edit]Challenge

Generally speaking, by their nature, arbitration proceedings tend not to be subject to appeal, in the ordinary sense of the word.
However, in most countries, the court maintains a supervisory role to set aside awards in extreme cases, such as fraud or in the case of some serious legal irregularity on the part of the tribunal.
Only domestic arbitral awards[citation needed] (i.e. those where the seat of arbitration is located in the same state as the court seised) are subject to set aside procedure.
In American arbitration law there exists a small but significant body of case law which deals with the power of the courts to intervene where the decision of an arbitrator is in fundamental disaccord with the applicable principles of law or the contract.[22]
Unfortunately there is little agreement amongst the different American judgments and textbooks as to whether such a separate doctrine exists at all, or the circumstances in which it would apply. There does not appear to be any recorded judicial decision in which it has been applied. However, conceptually, to the extent it exists, the doctrine would be an important derogation from the general principle that awards are not subject to review by the courts.

[edit]Costs

In many legal systems – both common law and civil law – it is normal practice for the courts to award legal costs against a losing party, with the winner becoming entitled to recover an approximation of what it spent in pursuing its claim (or in defense of a claim). The United States is a notable exception to this rule, as except for certain extreme cases, a prevailing party in a US legal proceeding does not become entitled to recoup its legal fees from the losing party.
Like the courts, arbitral tribunals generally have the same power to award costs in relation to the determination of the dispute. In international arbitration as well as domestic arbitrations governed by the laws of countries in which courts may award costs against a losing party, the arbitral tribunal will also determine the portion of the arbitrators’ fees that the losing party is required to bear.

[edit]Nomenclature

As methods of dispute resolution, arbitration procedure can be varied to suit the needs of the parties. Certain specific “types” of arbitration procedure have developed, particularly in North America.
  • Judicial Arbitration is, usually, not arbitration at all, but merely a court process which refers to itself as arbitration, such as small claims arbitration before the County Courts in the United Kingdom.[3]
  • High-Low Arbitration, or Bracketed Arbitration, is an arbitration wherein the parties to the dispute agree in advance the limits within which the arbitral tribunal must render its award. It is only generally useful where liability is not in dispute, and the only issue between the party is the amount of compensation. If the award is lower than the agreed minimum, then the defendant only need pay the lower limit; if the award is higher than the agreed maximum, the claimant will receive the upper limit. If the award falls within the agreed range, then the parties are bound by the actual award amount. Practice varies as to whether the figures may or may not be revealed to the tribunal, or whether the tribunal is even advised of the parties’ agreement.
  • Binding Arbitration is a form of arbitration where the decision by the arbitrator is legally binding and enforceable, similar to a court order.
  • Non-Binding Arbitration is a process which is conducted as if it were a conventional arbitration, except that the award issued by the tribunal is not binding on the parties, and they retain their rights to bring a claim before the courts or other arbitration tribunal; the award is in the form of an independent assessment of the merits of the case, designated to facilitate an out-of-court settlement. State law may automatically make a non-binding arbitration binding, if, for example, the non-binding arbitration is court-ordered, and no party requests a trial de novo (as if the arbitration had not been held).[23]
  • Pendulum Arbitration refers to a determination in industrial disputes where an arbitrator has to resolve a claim between a trade union and management by making a determination of which of the two sides has the more reasonable position. The arbitrator must choose only between the two options, and cannot split the difference or select an alternative position. It was initiated in Chile in 1979.
  • Night Baseball Arbitration is a variation of baseball arbitration where the figures are not revealed to the arbitration tribunal. The arbitrator will determinate the quantum of the claim in the usual way, and the parties agree to accept and be bound by the figure which is closest to the tribunal’s award.
Such forms of “Last Offer Arbitration” can also be combined with mediation to create MEDALOA hybrid processes (Mediation followed by Last Offer Arbitration).[24]

[edit]See also

[edit]Notes

  1. ^ Sullivan, arthur; Steven M. Sheffrin (2003). [http://www.pearsonschool.com/index.cfm? locator=PSZ3R9&PMDbSiteId=2781&PMDbSolutionId=6724&PMDbCategoryId=&PMDbProgramId=12881&level=4 Economics: Principles in action]. Upper Saddle River, New Jersey 07458: Pearson Prentice Hall. pp. 324.ISBN 0-13-063085-3.
  2. ^ Information World Mediation WikiMediation
  3. a b In the United Kingdom, small claims in the County court are dealt with by a procedure called “small claims arbitration”, although the proceedings are held in front of a district judge, paid for by the state. In Russia, the courts dealing with commercial disputes is referred to as the Supreme Court of Arbitration of the Russian Federation, although it is not an arbitral tribunal in the true sense of the word.
  4. ^ Although all attempts to determine disputes outside of the courts are “alternative dispute resolution” in the literal sense, ADR in the technical legal sense, is the process whereby an attempt is made to reach a common middle ground through an independent mediator as a basis for a binding settlement. In direct contrast, arbitration is an adversarial process to determine a winner and a loser in relation to the rights and wrongs of a dispute.
  5. ^ Trans-Lex.org: Confidentiality
  6. ^ Cf. e.g. Section 1030 subsection 1 of the GermanZivilprozessordnung.
  7. ^ Mitsubishi Motors v. Soler Chrysler-Plymouth, 473 U.S. 614 (1985)
  8. ^ Section 1030 subsection 2 Zivilprozessordnung
  9. ^ To be correct: certain form, as defined by statute, of an electronic signature using a chip card and a PIN code is also sufficient
  10. ^ Section 1031 subesction 5 of the Zivilprozessordnung. The restriction does not apply to notarized agreements, as it is presumed that the notary public will have well informed the consumer about the content and its implications.
  11. ^ Swiss Bank Corporation v Novrissiysk Shipping [1995] 1 Lloyd’s Rep 202
  12. ^ Hobbs Padgett & Co v J C Kirkland (1969) 113 SJ 832
  13. ^ Mangistaumunaigaz Oil Production v United Kingdom World Trade[1995] 1 Lloyd’s Rep 617
  14. ^ Norske Atlas Insurance Co v London General Insurance Co (1927) 28 Lloyds List Rep 104
  15. ^ Deutsche Schachtbau v R’As al-Khaimah National Oil Co [1990] 1 AC 295
  16. ^ For example, under English law see Heyman v Darwins Ltd. [1942] AC 356
  17. ^ For example, all arbitral awards issued by the ICC have to be reviewed internally before being handed down, which helps certainty and improves the quality of awards, but leads to delay and expense.
  18. ^ For example, in England these are codified in section 33 of the Arbitration Act 1996
  19. ^ Article 1 of the 1958 New York Convention
  20. ^ Tupman, “Case Studies in the Jurisdiction of the International Centre for Settlement of Investment Disputes” (1986) 35 ICLQ 813
  21. ^ Dallal v Bank Mellat [1986] 1 QB 441
  22. ^ The expression appears in the majority judgment in the U.S. Supreme Court decision in Wilko v Swan 346 US 427 (1953)
  23. ^ E.g., Section 44.103, Florida Statutes.
  24. ^http://www.altenburger.ch/uploads/tx_altenburger/jl_2007_The_Interaction_Between_Arbitration_and_Mediation.pdf.

[edit]References

  • Christian Buhring-Uhle and Gabriele Lars Kirchhof. Arbitration and Mediation in International Business, 2nd Edition (2006)
  • R David. Arbitration in international trade (1985)
  • Yves Dezalay and Bryant G. Garth. Dealing in Virtue: International Commercial Arbitration and the Construction of a Transnational Legal Order, (1998)
  • The Permanent Court of Arbitration. International Alternative Dispute Resolution: Past, Present and Future, (2000)
  • Julian Lew, Loukas Mistelis, Stefan Kroell, Comparative International Commercial Arbitration, (2003)
  • http://www.pwc.com/arbitrationstudy
  • A Redfern and M Hunter, Law and Practice of International Commercial Arbitration 4th Edition (2004)
  • Tibor Varady, John J. Barcelo, and Arthur Taylor Von Mehren. International Commercial Arbitration 3rd Edition (2006)
  • Gary BornInternational Commercial Arbitration (2009 Kluwer)

[edit]External links

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ប្រភព៖ (http://en.wikipedia.org/wiki/World_Intellectual_Property_

Organization)

From Wikipedia, the free encyclopedia

World Intellectual Property Organization
WIPO logo 2010.gif WIPO logo
Org type
Specialized Agency
Acronyms
WIPO
Head
Director-General of WIPO Francis Gurry
Status
Active
Established
July 14, 1967
Website
www.wipo.int

WIPO members

  Members
  Non-members

Francis Gurry in 2011

The World Intellectual Property Organization (WIPO) is one of the 17 specialized agencies of the United Nations. WIPO was created in 1967 “to encourage creative activity, to promote the protection of intellectual property throughout the world”.[1]

WIPO currently has 185 member states,[2] administers 24 international treaties,[3] and is headquartered in GenevaSwitzerland. The current Director-General of WIPO is Francis Gurry, who took office on October 1, 2008.[4] 183 of the UN Members as well as the Holy See are Members of WIPO. Non-members are the states of Cook IslandsKiribatiMarshall IslandsFederated States of MicronesiaNauruNiuePalauSolomon IslandsTimor-Leste,TuvaluVanuatu and the states with limited recognitionPalestine has observer status.[5]

Contents

[hide]

[edit]History

The predecessor to WIPO was the BIRPI (Bureaux Internationaux Réunis pour la Protection de la Propriété IntellectuelleFrench acronym for United International Bureaux for the Protection of Intellectual Property), which had been established in 1893 to administer the Berne Convention for the Protection of Literary and Artistic Works and the Paris Convention for the Protection of Industrial Property.

WIPO was formally created by the Convention Establishing the World Intellectual Property Organization, which entered into force on April 26, 1970. Under Article 3 of this Convention, WIPO seeks to “promote the protection of intellectual property throughout the world.” WIPO became a specialized agency of the UN in 1974. The Agreement between the United Nations and the World Intellectual Property Organization[6] notes in Article 1 that WIPO is responsible

“for promoting creative intellectual activity and for facilitating the transfer of technology related to industrial property to the developing countries in order to accelerate economic, social and cultural development, subject to the competence and responsibilities of the United Nations and its organs, particularly the United Nations Conference on Trade and Development, the United Nations Development Programme and the United Nations Industrial Development Organization, as well as of the United Nations Educational, Scientific and Cultural Organization and of other agencies within the United Nations system.”

The Agreement marked a transition for WIPO from the mandate it inherited in 1967 from BIRPI, to promote the protection of intellectual property, to one that in theory involved the more complex task of promoting technology transfer and economic development. [7] However, these two mission are often not compatible. [8]

Unlike other branches of the United Nations, WIPO has significant financial resources independent of the contributions from its Member States. In 2006, over 90% of its income of just over CHF 250 million[9] was expected to be generated from the collection of fees by the International Bureau (IB) under the intellectual property application and registration systems which it administers (the Patent Cooperation Treaty, the Madrid system for trade marks and theHague system for industrial designs).

[edit]Criticism

As with all United Nations multi-government forums, WIPO is not an elected body. WIPO usually attempts to reach decisions by consensus, but in any vote, each Member State is entitled to one vote, regardless of population or contribution to the funding. This has highlighted a disagreement over certain issues, due to the North-South divide in the politics of intellectual property. During the 1960s and 1970s, developing nations were able to block expansions to intellectual property treaties, such as universal pharmaceutical patents which might have occurred through WIPO[vague]

In the 1980s, this led to the United States and other developed countries “forum shifting” intellectual property standard-setting out of WIPO and into theGeneral Agreement on Tariffs and Trade, which later evolved into the World Trade Organization, where the North had greater control of the agenda. This strategy eventually resulted in the enactment ofAgreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).[citation needed]

Much of the work at WIPO is done through committees, including the Standing Committee on Patents (SCP), the Standing Committee on Copyright and Related Rights (SCCR), the Advisory Committee on Enforcement (ACE), and the Intergovernmental Committee (IGC) on Access to Genetic Resources, Traditional Knowledge and Folklore, and the Working Group on Reform of the Patent Cooperation Treaty.[who?]

In October 2004, WIPO agreed to adopt a proposal offered by Argentina and Brazil, the “Proposal for the Establishment of a Development Agenda for WIPO” – from the Geneva Declaration on the Future of the World Intellectual Property Organization.[10] This proposal was well supported by developing countries. A number of civil society bodies have been working on a draft Access to Knowledge (A2K)[11] Treaty which they would like to see introduced.

The Washington Post reported in 2003 that Lois Boland (USPTO Director of International Relations) said “that open-source software runs counter to the mission of WIPO, which is to promote intellectual-property rights.” Also saying, “To hold a meeting which has as its purpose to disclaim or waive such rights seems to us to be contrary to the goals of WIPO.”[12]

[edit]Information network

WIPO has established WIPOnet, a global information network. The project seeks to link over 300 intellectual property offices (IP offices) in all WIPO Member States. In addition to providing a means of secure communication among all connected parties, WIPOnet is the foundation for WIPO’s intellectual property services.[13]

[edit]See also

[edit]Notes and references

  1. ^ Convention Establishing the World Intellectual Property Organization[1] signed at Stockholm on July 14, 1967, Preamble, second paragraph.
  2. ^ List of members states of WIPO. Consulted on February 2, 2012.
  3. ^ Treates administered by WIPO. Consulted on September 11, 2008.
  4. ^ WIPO web site, Francis Gurry is appointed Director General of WIPO, News Archive 2008. Consulted on September 27, 2008.
  5. ^ Palestine WIPO status
  6. ^ Agreement between the United Nations and the World Intellectual Property Organization
  7. ^ p12, Shabalala et al. “A Citizen’s Guide to WIPO” CIEL 2007. Available at:http://www.ciel.org/Publications/CitizensGuide_WIPO_Oct07.pdf
  8. ^ Helpman, Elhanan (1990) Innovation, Imitation, and Intelectual Property Rightshttp://www.nber.org/papers/w4081.pdf?new_window=1
  9. ^ Proposed program and budget 2006/2007 estimates 456m fee income out of total 531m income for the biennium, WO/PBC/8/3
  10. ^ Consumer Project on Technology web site, Geneva Declaration on the Future of the World Intellectual Property Organization
  11. ^ Consumer Project on Technology web site, Access to Knowledge (A2K)
  12. ^ Jonathan Krim, The Quiet War Over Open-SourceThe Washington Post, August 21, 2003
  13. ^ United Nations Multilingual Terminology Database, Entry on World Intellectual Property Organization. Consulted on February 24, 2008.

[edit]External links

Wikimedia Commons has media related to: World Intellectual Property Organization
Wikiquote has a collection of quotations related to: World Intellectual Property Organization

ប្រភព៖ (​​​http://en.wikipedia.org/wiki/Wto)

From Wikipedia, the free encyclopedia
  (Redirected from Wto)
“WTO” redirects here. For other uses, see WTO (disambiguation).

The organization is currently endeavoring to persist with a trade negotiation called the Doha Development Agenda (or Doha Round), which was launched in 2001 to enhance equitable participation of poorer countries which represent a majority of the world’s population. However, the negotiation has been dogged by “disagreement between exporters of agricultural bulk commodities and countries with large numbers of subsistence farmers on the precise terms of a ‘special safeguard measure’ to protect farmers from surges in imports. At this time, the future of the Doha Round is uncertain.”[6]The World Trade Organization (WTO) is an organization that intends to supervise and liberalize international trade. The organization officially commenced on January 1, 1995 under the Marrakech Agreement, replacing the General Agreement on Tariffs and Trade (GATT), which commenced in 1948. The organization deals with regulation of trade between participating countries; it provides a framework for negotiating and formalizing trade agreements, and a dispute resolution process aimed at enforcing participants’ adherence to WTO agreements which are signed by representatives of member governments and ratified by their parliaments.[4][5] Most of the issues that the WTO focuses on derive from previous trade negotiations, especially from the Uruguay Round (1986–1994).

[edit]History

Harry White (l) and John Maynard Keynes at the Bretton Woods Conference — Both economists had been strong advocates of a liberal international trade environment, and recommended the establishment of three institutions: the IMF (fiscal and monetary issues), the World Bank (financial and structural issues), and the ITO (international economic cooperation).[7]

The WTO’s predecessor, the General Agreement on Tariffs and Trade (GATT), was established after World War II in the wake of other new multilateral institutions dedicated to international economic cooperation — notably the Bretton Woods institutions known as the World Bank and the International Monetary Fund. A comparable international institution for trade, named the International Trade Organization was successfully negotiated. The ITO was to be a United Nations specialized agency and would address not only trade barriers but other issues indirectly related to trade, including employment, investment, restrictive business practices, and commodity agreements. But the ITO treaty was not approved by the U.S. and a few other signatories and never went into effect.[8][9][10]

In the absence of an international organization for trade, the GATT would over the years “transform itself” into a de facto international organization.[11]

[edit]GATT rounds of negotiations

The GATT was the only multilateral instrument governing international trade from 1947 until the WTO was established in 1995.[12] Despite attempts in the mid 1950s and 1960s to create some form of institutional mechanism for international trade, the GATT continued to operate for almost half a century as a semi-institutionalized multilateral treaty regime on a provisional basis.[13]

[edit]From Geneva to Tokyo

Seven rounds of negotiations occurred under GATT. The first real GATT trade rounds concentrated on further reducing tariffs. Then, the Kennedy Round in the mid-sixties brought about a GATT anti-dumping Agreement and a section on development. The Tokyo Round during the seventies was the first major attempt to tackle trade barriers that do not take the form of tariffs, and to improve the system, adopting a series of agreements on non-tariff barriers, which in some cases interpreted existing GATT rules, and in others broke entirely new ground. Because these plurilateral agreements were not accepted by the full GATT membership, they were often informally called “codes”. Several of these codes were amended in the Uruguay Round, and turned into multilateral commitments accepted by all WTO members. Only four remained plurilateral (those on government procurement, bovine meat, civil aircraft and dairy products), but in 1997 WTO members agreed to terminate the bovine meat and dairy agreements, leaving only two.[12]

[edit]Uruguay Round

During the Doha Round, the US government blamed Brazil and India for being inflexible, and the EU for impeding agricultural imports.[14] The Ex-President of BrazilLuiz Inácio Lula da Silva, responded to the criticisms by arguing that progress would only be achieved if the richest countries (especially the US and countries in the EU) make deeper cuts in their agricultural subsidies, and further open their markets for agricultural goods.[15]

Main article: Uruguay Round

Well before GATT’s 40th anniversary, its members concluded that the GATT system was straining to adapt to a new globalizing world economy.[16][17] In response to the problems identified in the 1982 Ministerial Declaration (structural deficiencies, spill-over impacts of certain countries’ policies on world trade GATT could not manage etc.), the eighth GATT round — known as the Uruguay Round — was launched in September 1986, in Punta del EsteUruguay.[16]

It was the biggest negotiating mandate on trade ever agreed: the talks were going to extend the trading system into several new areas, notably trade in services and intellectual property, and to reform trade in the sensitive sectors of agriculture and textiles; all the original GATT articles were up for review.[17]The Final Act concluding the Uruguay Round and officially establishing the WTO regime was signed April 15, 1994, during the ministerial meeting atMarrakeshMorocco, and hence is known as the Marrakesh Agreement.[18]

The GATT still exists as the WTO’s umbrella treaty for trade in goods, updated as a result of the Uruguay Round negotiations (a distinction is made betweenGATT 1994, the updated parts of GATT, and GATT 1947, the original agreement which is still the heart of GATT 1994).[16] GATT 1994 is not however the only legally binding agreement included via the Final Act at Marrakesh; a long list of about 60 agreements, annexes, decisions and understandings was adopted. The agreements fall into a structure with six main parts:

[edit]Ministerial conferences

The topmost decision-making body of the WTO is the Ministerial Conference, which usually meets every two years. It brings together all members of the WTO, all of which are countries or customs unions. The Ministerial Conference can take decisions on all matters under any of the multilateral trade agreements. The inaugural ministerial conference was held in Singapore in 1996. Disagreements between largely developed and developing economies emerged during this conference over four issues initiated by this conference, which led to them being collectively referred to as the “Singapore issues“. The second ministerial conference was held in Geneva in Switzerland. The third conference in Seattle, Washington ended in failure, with massive demonstrations and police and National Guard crowd control efforts drawing worldwide attention. The fourth ministerial conference was held in Doha in the Persian Gulf nation of Qatar. The Doha Development Round was launched at the conference. The conference also approved the joining of China, which became the 143rd member to join. The fifth ministerial conference was held in CancúnMexico, aiming at forging agreement on the Doha round. An alliance of 22 southern states, the G20 developing nations (led by India, China,[20] Brazil, ASEAN led by the Philippines), resisted demands from the North for agreements on the so-called “Singapore issues” and called for an end to agricultural subsidies within the EU and the US. The talks broke down without progress.

The sixth WTO ministerial conference was held in Hong Kong from 13–18 December 2005. It was considered vital if the four-year-old Doha Development Agenda negotiations were to move forward sufficiently to conclude the round in 2006. In this meeting, countries agreed to phase out all their agricultural export subsidies by the end of 2013, and terminate any cotton export subsidies by the end of 2006. Further concessions to developing countries included an agreement to introduce duty free, tariff free access for goods from the Least Developed Countries, following the Everything but Armsinitiative of the European Union — but with up to 3% of tariff lines exempted. Other major issues were left for further negotiation to be completed by the end of 2010. The WTO General Council, on 26 May 2009, agreed to hold a seventh WTO ministerial conference session in Geneva from 30 November-3 December 2009. A statement by chairman Amb. Mario Matus acknowledged that the prime purpose was to remedy a breach of protocol requiring two-yearly “regular” meetings, which had lapsed with the Doha Round failure in 2005, and that the “scaled-down” meeting would not be a negotiating session, but “emphasis will be on transparency and open discussion rather than on small group processes and informal negotiating structures”. The general theme for discussion was “The WTO, the Multilateral Trading System and the Current Global Economic Environment”[21]

[edit]Doha Round
Main article: Doha Round

The Doha Development Round started in 2001 and continues today.

The WTO launched the current round of negotiations, the Doha Development Agenda (DDA) or Doha Round, at the fourth ministerial conference in Doha, Qatar in November 2001. The Doha round was to be an ambitious effort to make globalization more inclusive and help the world’s poor, particularly by slashing barriers and subsidies in farming.[22] The initial agenda comprised both further trade liberalization and new rule-making, underpinned by commitments to strengthen substantial assistance to developing countries.[23]

The negotiations have been highly contentious and agreement has not been reached, despite the intense negotiations at several ministerial conferences and at other sessions. Disagreements still continue over several key areas including agriculture subsidies.[24]

Among the various functions of the WTO, these are regarded by analysts as the most important:[edit]Functions

  • It oversees the implementation, administration and operation of the covered agreements.[26][27]
  • It provides a forum for negotiations and for settling disputes.[28][29]

Additionally, it is the WTO’s duty to review and propagate the national trade policies, and to ensure the coherence and transparency of trade policies through surveillance in global economic policy-making.[27][29] Another priority of the WTO is the assistance of developing, least-developed and low-income countries in transition to adjust to WTO rules and disciplines through technical cooperation and training.[30]

The WTO is also a center of economic research and analysis: regular assessments of the global trade picture in its annual publications and research reports on specific topics are produced by the organization.[31] Finally, the WTO cooperates closely with the two other components of the Bretton Woods system, the IMF and the World Bank.[28]

[edit]Principles of the trading system

The WTO establishes a framework for trade policies; it does not define or specify outcomes. That is, it is concerned with setting the rules of the trade policy games.[32] Five principles are of particular importance in understanding both the pre-1994 GATT and the WTO:

  1. Non-Discrimination. It has two major components: the most favoured nation (MFN) rule, and the national treatment policy. Both are embedded in the main WTO rules on goods, services, and intellectual property, but their precise scope and nature differ across these areas. The MFN rule requires that a WTO member must apply the same conditions on all trade with other WTO members, i.e. a WTO member has to grant the most favorable conditions under which it allows trade in a certain product type to all other WTO members.[32] “Grant someone a special favour and you have to do the same for all other WTO members.”[33] National treatment means that imported goods should be treated no less favorably than domestically produced goods (at least after the foreign goods have entered the market) and was introduced to tackle non-tariff barriers to trade (e.g. technical standards, security standards et al. discriminating against imported goods).[32]
  2. Reciprocity. It reflects both a desire to limit the scope of free-riding that may arise because of the MFN rule, and a desire to obtain better access to foreign markets. A related point is that for a nation to negotiate, it is necessary that the gain from doing so be greater than the gain available from unilateral liberalization; reciprocal concessions intend to ensure that such gains will materialise.[34]
  3. Binding and enforceable commitments. The tariff commitments made by WTO members in a multilateral trade negotiation and on accession are enumerated in a schedule (list) of concessions. These schedules establish “ceiling bindings”: a country can change its bindings, but only after negotiating with its trading partners, which could mean compensating them for loss of trade. If satisfaction is not obtained, the complaining country may invoke the WTO dispute settlement procedures.[33][34]
  4. Transparency. The WTO members are required to publish their trade regulations, to maintain institutions allowing for the review of administrative decisions affecting trade, to respond to requests for information by other members, and to notify changes in trade policies to the WTO. These internal transparency requirements are supplemented and facilitated by periodic country-specific reports (trade policy reviews) through the Trade Policy Review Mechanism (TPRM).[35] The WTO system tries also to improve predictability and stability, discouraging the use of quotas and other measures used to set limits on quantities of imports.[33]
  5. Safety valves. In specific circumstances, governments are able to restrict trade. There are three types of provisions in this direction: articles allowing for the use of trade measures to attain noneconomic objectives; articles aimed at ensuring “fair competition”; and provisions permitting intervention in trade for economic reasons.[35] Exceptions to the MFN principle also allow for preferential treatment of developed countries, regional free trade areas and customs unions.[citation needed]
[edit]Organizational structure

The General Council has multiple bodies which oversee committees in different areas, re the following:

Council for Trade in Goods
There are 11 committees under the jurisdiction of the Goods Council each with a specific task. All members of the WTO participate in the committees. The Textiles Monitoring Body is separate from the other committees but still under the jurisdiction of Goods Council. The body has its own chairman and only 10 members. The body also has several groups relating to textiles.[36]
Council for Trade-Related Aspects of Intellectual Property Rights
Information on intellectual property in the WTO, news and official records of the activities of the TRIPS Council, and details of the WTO’s work with other international organizations in the field.[37]
Council for Trade in Services
The Council for Trade in Services operates under the guidance of the General Council and is responsible for overseeing the functioning of the General Agreement on Trade in Services (GATS). It is open to all WTO members, and can create subsidiary bodies as required.[38]
Trade Negotiations Committee
The Trade Negotiations Committee (TNC) is the committee that deals with the current trade talks round. The chair is WTO’s director-general. The committee is currently tasked with the Doha Development Round.[39]

The Service Council has three subsidiary bodies: financial services, domestic regulations, GATS rules and specific commitments.[36] The General council has several different committees, working groups, and working parties.[40] There are committees on the following: Trade and Environment; Trade and Development (Subcommittee on Least-Developed Countries); Regional Trade Agreements; Balance of Payments Restrictions; and Budget, Finance and Administration. There are working parties on the following: Accession. There are working groups on the following: Trade, debt and finance; and Trade and technology transfer.

[edit]Decision-making

The WTO describes itself as “a rules-based, member-driven organization — all decisions are made by the member governments, and the rules are the outcome of negotiations among members”.[41]The WTO Agreement foresees votes where consensus cannot be reached, but the practice of consensus dominates the process of decision-making.[42]

Richard Harold Steinberg (2002) argues that although the WTO’s consensus governance model provides law-based initial bargaining, trading rounds close through power-based bargaining favouringEurope and the U.S., and may not lead to Pareto improvement.[43]

[edit]Dispute settlement

In 1994, the WTO members agreed on the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) annexed to the “Final Act” signed in Marrakesh in 1994.[44] Dispute settlement is regarded by the WTO as the central pillar of the multilateral trading system, and as a “unique contribution to the stability of the global economy”.[45] WTO members have agreed that, if they believe fellow-members are violating trade rules, they will use the multilateral system of settling disputes instead of taking action unilaterally.[46]

The operation of the WTO dispute settlement process involves the DSB panels, the Appellate Body, the WTO Secretariat, arbitrators, independent experts and several specialized institutions.[47]Bodies involved in the dispute settlement process, World Trade Organization.

[edit]Accession and membership

The process of becoming a WTO member is unique to each applicant country, and the terms of accession are dependent upon the country’s stage of economic development and current trade regime.[48] The process takes about five years, on average, but it can last more if the country is less than fully committed to the process or if political issues interfere. The shortest accession negotiation was that of the Kyrgyz Republic, while the longest was that of the People’s Republic of China (P. Farah, Five Years of China’s WTO Membership, 263–304). Russia, having first applied to join GATT in 1993, was approved for membership in December 2011.[49] An offer of accession is only given once consensus is reached among interested parties.[50]

[edit]Accession process

Status of WTO negotiations:

  Members (including dual-representation with the European Union)
  Draft Working Party Report or Factual Summary adopted
  Goods and/or Services offers submitted
  Memorandum on Foreign Trade Regime (FTR) submitted
  Observer, negotiations to start later or no Memorandum on FTR submitted
  Frozen procedures or no negotiations in the last 3 years
  No official interaction with the WTO

A country wishing to accede to the WTO submits an application to the General Council, and has to describe all aspects of its trade and economic policies that have a bearing on WTO agreements.[51] The application is submitted to the WTO in amemorandum which is examined by a working party open to all interested WTO Members.[50]

After all necessary background information has been acquired, the working party focuses on issues of discrepancy between the WTO rules and the applicant’s international and domestic trade policies and laws. The working party determines the terms and conditions of entry into the WTO for the applicant nation, and may consider transitional periods to allow countries some leeway in complying with the WTO rules.[48]

The final phase of accession involves bilateral negotiations between the applicant nation and other working party members regarding the concessions and commitments on tariff levels and market access for goods and services. The new member’s commitments are to apply equally to all WTO members under normal non-discrimination rules, even though they are negotiated bilaterally.[51]

When the bilateral talks conclude, the working party sends to the general council or ministerial conference an accession package, which includes a summary of all the working party meetings, the Protocol of Accession (a draft membership treaty), and lists (“schedules”) of the member-to-be’s commitments. Once the general council or ministerial conference approves of the terms of accession, the applicant’s parliament must ratify the Protocol of Accession before it can become a member.[52]

[edit]Members and observers

The WTO has 157 members and 26 observers.[53] In addition to states, the European Union is also a member. WTO members do not have to be full sovereign nation-members. Instead, they must be a customs territory with full autonomy in the conduct of their external commercial relations. Thus Hong Kong (as “Hong Kong, China” since 1997) became a GATT contracting party, and the Republic of China (Taiwan) acceded to the WTO in 2002 as “Separate Customs Territory of TaiwanPenghuKinmen and Matsu” (Chinese Taipei) despite its disputed status.[54] The WTO Secretariat omits the official titles (such as Counselor, First Secretary, Second Secretary and Third Secretary) of the members of Chinese Taipei’s Permanent Mission to the WTO, except for the titles of the Permanent Representative and the Deputy Permanent Representative.[55]

Iran is the biggest economy outside the WTO.[56] With the exception of the Holy See, observers must start accession negotiations within five years of becoming observers. Some international intergovernmental organizations are also granted observer status to WTO bodies.[57] 14 states and two territories so far have no official interaction with the WTO.

[edit]Agreements
Main article: Uruguay Round

The WTO oversees about 60 different agreements which have the status of international legal texts. Member countries must sign and ratify all WTO agreements on accession.[58] A discussion of some of the most important agreements follows. The Agreement on Agriculture came into effect with the establishment of the WTO at the beginning of 1995. The AoA has three central concepts, or “pillars”: domestic support, market access and export subsidies. The General Agreement on Trade in Services was created to extend the multilateral trading system to service sector, in the same way theGeneral Agreement on Tariffs and Trade (GATT) provides such a system for merchandise trade. The Agreement entered into force in January 1995. The Agreement on Trade-Related Aspects of Intellectual Property Rights sets down minimum standards for many forms of intellectual property (IP) regulation. It was negotiated at the end of the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) in 1994.

The Agreement on the Application of Sanitary and Phytosanitary Measures — also known as the SPS Agreement was negotiated during the Uruguay Round of the General Agreement on Tariffs and Trade, and entered into force with the establishment of the WTO at the beginning of 1995. Under the SPS agreement, the WTO sets constraints on members’ policies relating to food safety (bacterial contaminants, pesticides, inspection and labelling) as well as animal and plant health (imported pests and diseases). The Agreement on Technical Barriers to Trade is an international treaty of the World Trade Organization. It was negotiated during the Uruguay Round of the General Agreement on Tariffs and Trade, and entered into force with the establishment of the WTO at the end of 1994. The object ensures that technical negotiations and standards, as well as testing and certification procedures, do not create unnecessary obstacles to trade”.[59] The Agreement on Customs Valuation, formally known as the Agreement on Implementation of Article VII of GATT, prescribes methods of customs valuation that Members are to follow. Chiefly, it adopts the “transaction value” approach.

[edit]Effectiveness
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[edit]Directors-General

The Directors-General of the WTO have been:[60]

The Directors-General of the precursor organization, GATT, were:

ប្រភព៖  RFI (http://www.khmer.rfi.fr/la-pertetuite-pour-le-khmer-rouge-Duch)

កម្ពុជា –
អត្ថបទចុះ​ផ្សាយ​នៅ​ថ្ងៃ សុក្រ 03 កុម្ភៈ 2012 – ព័ត៌មានទើប​កែប្រើ​លើកចុងក្រោយ​ ថ្ងៃ សុក្រ 03 កុម្ភៈ 2012

កាំង​ ហ្គេចអ៊ាវ​ ហៅឌុច​ មេគុក​ទួលស្លែង​ឬស២១​ ​

កាំង​ ហ្គេចអ៊ាវ​ ហៅឌុច​ មេគុក​ទួលស្លែង​ឬស២១​ ​

© Reuters

ឌុច​ មេគុក​ស២១​នៅក្នុង​ទីក្រុង​ភ្នំពេញ​ក្រោមរបប​ខ្មែរក្រហម​ ​ ដែល​នៅទីនោះ​ ​ មាន​មនុស្ស​ប្រមាណ​១៥ ០០០នាក់​ ​ បានត្រូវ​មេគុក​ឌុច​ធ្វើទណ្ឌកម្ម​និង​សម្លាប់យ៉ាង​ឃោរឃៅ។​ នៅ​ថ្ងៃសុក្រ​ទី៣កុម្ភៈ​នេះ​ ​ តុលាការ​កំពូល​ឧបត្ថម្ភ​ដោយ​អង្គការ​សហប្រជាជាតិ​បាន​សម្រេច​កាត់ទោស​ឲ្យ​ឌុច​ជាប់គុក​មួយជីវិត។

សេចក្តីរាយការណ៍របស់​ សៀក សារិន

03/02/2012 by សៀក សារិន

ឌុច​ដែលជា​អតីត​មេគុក​ទួលស្លែង​ឬ​ស២១​ដែលជា​ពន្ធនាគារ​ដ៏ធំ​នៅក្នុង​ទីក្រុង​ភ្នំពេញ​ ​ ក្រោមរបប​ខ្មែរក្រហម​ (​ឆ្នាំ១៩៧៥-១៩៧៩​) ​ ​បានត្រូវ​គេចាប់​ខ្លួន​នៅឆ្នាំ១៩៩៩​ ពោលគឺ​២០ឆ្នាំ​ក្រោយពី​របប​ខ្មែរក្រហម​ដ៏សាហាវ​ឃោរឃៅ​បាន​ដួលរលំ។​ កាំង​ ហ្គេចអ៊ាវ​ហៅឌុច​ក៏​បាន​ត្រូវ​តុលាការ​ឧបត្ថម្ភ​ដោយ​អង្គការ​សហប្រជាជាតិ​កាត់ទោស​ជាលើក​ដំបូង​ឲ្យ​ “ជាប់គុក​៣០ឆ្នាំ​”​ នៅ​ខែកក្កដា​ឆ្នាំ២០១០​ពី​បទឧក្រិដ្ឋកម្ម​សង្គ្រាម​និង​ឧក្រិដ្ឋកម្ម​ប្រឆាំង​មនុស្សជាតិ។

បន្ទាប់មក​ ​ ឌុច​និង​មេធាវី​ក៏​បាន​ប្តឹង​តវ៉ា​ទៅ​សាលា​កំពូល​សុំ​រួចខ្លួន​ពី​ពន្ធនាគារ​ ​ ដោយ​អះ អាង ថា​ ​ ខ្លួន​ពុំមែន​ជា​មេដឹកនាំ​ធំដុំ​នៅក្នុង​របប​ខ្មែរក្រហម​ ​ ហើយគ្មាន​តួនាទី​អ្វី​សំខាន់​ឡើយ។​ ទង្វើ​អ្វីៗ​ដែល​ខ្លួន​បាន​ប្រព្រឹត្ត​នៅ​ក្នុង​គុក​ទួលស្លែង​គឺ​ធ្វើតាម​តែ​ការបញ្ជា​របស់​ថ្នាក់លើ​តែ ប៉ុណ្ណោះ។

ក៏ប៉ុន្តែ​ ​ នៅ​ថ្ងៃសុក្រ​ទី៣កុម្ភៈ​នេះ​ តុលាការ​កំពូល​បាន​សម្រេច​កាត់ទោស​ឲ្យ​ឌុច​ “​ជាប់គុក​មួយជីវិត​”​ ទៅវិញ​ ​ ដោយ​តុលាការ​កំពូល​យល់ថា​ ​ ការ​កាត់ទោស​ជាលើក​ដំបូង​ឲ្យ​ “ជាប់គុក​៣០ឆ្នាំ​”​ជាទោស​មាន​លក្ខណៈ​ស្រាលពេក​ ​ ពុំស្មើនឹង​កម្រិត​ឧក្រិដ្ឋកម្ម​ដ៏​ធ្ងន់ធ្ងរ​ដែលបាន​ប្រព្រឹត្ត​ដោយ​ កាំង​ ហ្គេចអ៊ាវ​ ហៅឌុច​ មេគុក​ទួលស្លែង​ឬស២១​ ​ ដែល​នៅទីនោះ​មាន​មនុស្ស​ប្រមាណ​១៥ ០០០នាក់​ ​ បានត្រូវ​មេគុក​ឌុច​ធ្វើទណ្ឌកម្ម​និង​សម្លាប់​យ៉ាង​ឃោរឃៅ។

ឌុច​ដែលមាន​អាយុ​៦៩ឆ្នាំ​ ​ ពាក់អាវស​ នៅពេល​ឮ​តុលាការ​កំពូល​សម្រេច​កាត់ទោស​ឲ្យ​”ជាប់គុក​មួយជីវិត​”​ ​ ពុំបាន​ចេញស្ដី​អ្វីឡើយ​។​ គួរបញ្ជាក់ថា​ ​ ការ​កាត់ទោស​ជាលើក​ដំបូង​ដោយ​តុលាការ​ឲ្យ​ឌុច​ “ជាប់គុក​៣០ឆ្នាំ​”​ ​ អាច​អនុញ្ញាត​ឲ្យ​មេគុក​ទួលស្លែង​ហៅឌុច​រួចខ្លួន​ចេញពី​ពន្ធនាគារ​ក្នុងរយៈ​ពេល​១៨ឆ្នាំ​ខាងមុខ​ នៅពេល​ដែល​ឌុច​មាន​អាយុ​៨៧ឆ្នាំ​ ​ ដោយហេតុថា​ ឌុច​បាន​ត្រូវ​គេចាប់​ឃុំឃាំង​អស់​រយៈកាល​១២ឆ្នាំ​រួចមកហើយ។

នេះ​ក៏ជា​កត្តា​មួយ​នាំឲ្យ​តុលាការ​កំពូល​សម្រេច​កាត់ទោស​ឲ្យឌុច​ “ជាប់គុក​មួយជីវិត​” ។​ ហើយម្យ៉ាងទៀត​ ​ ការកាត់ទោស​ជាលើក​ដំបូង​ឲ្យ​ឌុច​ “ជាប់គុក​៣០ឆ្នាំ​”​ នៅ​ខែកក្កដា​ឆ្នាំ២០១០​ពី​បទឧក្រិដ្ឋកម្ម​សង្គ្រាម​និង​ឧក្រិដ្ឋកម្ម​ប្រឆាំង​មនុស្សជាតិ​ ​ ជាការ​កាត់ទោស​មាន​លក្ខណៈ​ស្រាលពេក​ ​ ពុំសមស្រប​នឹង​ទម្ងន់​នៃ​ឧក្រិដ្ឋកម្ម​ដែលបាន​ប្រព្រឹត្ត​ដោយ​មេគុក​ទួលស្លែង​ហៅឌុច​ឡើយ៕

អតីតអ្នក​ទោស​មក​លក់​សៀវភៅ​នៅ​កន្លែង​ខ្លួន​រង​ទារុណ​កម្ម​ពី​មុន

អតីតអ្នក​ទោស​មក​លក់​សៀវភៅ​នៅ​កន្លែង​ខ្លួន​រង​ទារុណ​កម្ម​ពី​មុន.

ប្រភព​ ៖ RFI ( http://www.khmer.rfi.fr/cambodia/20120125-interview-with-cambodian-bank)

ពុធ 25 មករា 2012
លោក អ៊ិន ចាន់នី​​ អគ្គនាយក​​ធនាគារ​​អេស៊ីលីដា​

លោក អ៊ិន ចាន់នី​​ អគ្គនាយក​​ធនាគារ​​អេស៊ីលីដា​

© គី​ សុខលីម

វិស័យ​ធនាគារ​នៅ​ក្នុង​ប្រទេស​កម្ពុជា​មាន​សុខភាពល្អ។ ​ជាក់ស្តែង កាលពីឆ្នាំ​២០១១​កន្លងមក​ ប្រាក់ឥណទាន​មានកំណើន​ប្រមាណជា​៣០ភាគរយ​និង​ប្រាក់​បញ្ញើ​មានកំណើន​ប្រមាណជា​២០​ភាគរយ។​ ដើម្បី​ចង់ដឹង​ថា តើ​វិស័យធនាគារ​កម្ពុជា​មានសុខភាព​ល្អ​នៅ​ឆ្នាំ​២០១១​ដោយសារ​អ្វីនោះ​សូមអញ្ជើញ​ស្តាប់​បទសម្ភាសន៍​រវាងលោក គី សុខលីម​ និង​លោក អ៊ិន ចាន់នី​ អគ្គនាយក​ធនាគារ​អេស៊ីលីដា។

ពាក្យគន្លឹះ : កម្ពុជា – សេដ្ឋកិច្ច

ប្រភព៖ RFI

(http://www.khmer.rfi.fr/questions-and-answers-about-facebook-ipo)

អត្ថបទចុះ​ផ្សាយ​នៅ​ថ្ងៃ ព្រហស្បតិ៍ 02 កុម្ភៈ 2012

– ព័ត៌មានទើប​កែប្រើ​លើកចុងក្រោយ​ ថ្ងៃ ព្រហស្បតិ៍ 02 កុម្ភៈ 2012
លោក Mark Zuckerberg អគ្គនាយក និង​ជា​អ្នក​បង្កើត​ Facebook

លោក Mark Zuckerberg អគ្គនាយក និង​ជា​អ្នក​បង្កើត​ Facebook

REUTERS/Robert Galbraith/Files

កាលពីថ្ងៃ​ពុធ ១ កុម្ភៈ ម្សិលមិញ​នេះ Facebook ដែល​ជា​បណ្តាញ​សង្គម​តាម​អ៊ីនធ័រនែត​ដ៏ធំបំផុត នៅលើពិភពលោក បាន​បញ្ជូន​សំណុំឯកសារជាផ្លូវការ ទៅកាន់​គណៈកម្មការ​មូលបត្រ​អាមេរិក (SEC) ដើម្បី​សុំ​លក់​ភាគហ៊ុន នៅលើទីផ្សារ​មូលបត្រ។ ខាងក្រោម​នេះ គឺ​ជា​សំណួរ-ចម្លើយ​ជុំវិញ​ការ​​បោះជំហាន​ចូល​ទីផ្សារ​មូលបត្រ​របស់​ Facebook ។

ការពន្យល់​របស់​សេង ឌីណា

តើ​ Facebook គ្រោង​លក់​ភាគហ៊ុន​ប៉ុន្មាន?

Facebook មាន​គោលដៅ​ប្រមូល​លុយ​ឲ្យ​បាន ៥ពាន់លាន​ដុល្លារ ពី​ការ​លក់​ភាគហ៊ុន​ជាសាធារណៈ​ជាលើក​ដំបូង (Initial Public Offering) ​នេះ។ ចំនួននេះ​តិច​ជាង​ការ​រំពឹង​ទុក​ពីពេលមុន (១០ពាន់លាន​ដុល្លារ) ក៏ប៉ុន្តែ នៅតែ​ច្រើន​ជាង​​ការលក់​ភាគហ៊ុន​ដំបូង​របស់​ក្រុមហ៊ុន​អ៊ីនធ័រនែត​ផ្សេងៗ​ទៀត នាពេល​កន្លងមក។

នៅពេល​លក់​ភាគហ៊ុន​ជា​សាធារណៈ​លើក​ដំបូង កាលពី​ឆ្នាំ​២០០៤ Google លក់​បាន​តែ ១​ ៦៧០​លាន​ដុល្លារ​​ប៉ុណ្ណោះ។
 
តើ​ភាគហ៊ុន​របស់ Facebook មាន​តម្លៃ​ប៉ុន្មាន?
 
នៅក្នុង​ឯកសារ​ដែល​បញ្ជូន​ទៅ​គណៈកម្មការ​មូលបត្រ Facebook មិនទាន់​បាន​កំណត់​តម្លៃ​ភាគហ៊ុន ដែល​ត្រូវ​លក់​នៅឡើយទេ។ ចំនួន​ពិតប្រាកដ នៃ​​ភាគហ៊ុន ដែល​ត្រូវ​ដាក់លក់​ជា​សាធារណៈ ក៏​ Facebook មាន​បាន​បញ្ជាក់​នៅ​ក្នុង​ឯកសារ​​នេះ​ដែរ។​

នៅពេលបច្ចុប្បន្ន​នេះ គេ​ប៉ាន់ប្រមាណ​ថា ភាគហ៊ុន Facebook មាន​តម្លៃ ២៩,៧៣​ដុល្លារ ក្នុង​មួយ​ហ៊ុន។ ប៉ុន្តែ អ្នកខ្លះ​បានព្យាករ​ថា ភាគហ៊ុន​នេះ​អាច​នឹង​មាន​តម្លៃ​រហូតដល់​ទៅ ៤០ដុល្លារ ក្នុងមួយ​ហ៊ុន នៅពេល​ចាប់ផ្តើម​លក់​នៅលើ​ទីផ្សារ​មូលបត្រ។ ទោះជាយ៉ាងណា ទាំងនេះ គ្រាន់តែ​ការ​ប៉ាន់ស្មាន​តែ​ប៉ុណ្ណោះ។
 
នៅពេលណា ទើបគេ​អាច​​ចាប់ផ្តើម​ទិញភាគហ៊ុន​របស់ Facebook បាន?
 
កាលពី​ថ្ងៃ​ពុធ ម្សិលមិញ​នេះ Facebook គ្រាន់តែ​បញ្ជូន​ឯកសារ ដើម្បី​សុំ​លក់​ភាគហ៊ុន ប៉ុន្តែ នៅមិនទាន់​ចាប់ផ្តើម​លក់​ភាគហ៊ុន​នៅឡើយទេ។ ដូច្នេះ គេនៅមិនទាន់​អាច​ទិញ​ភាគហ៊ុន Facebook បាន​នៅឡើយទេ នៅពេលនេះ។ គេត្រូវ​រង់ចាំ​យ៉ាងតិច ៣ខែ​ទៀត (​ក្រោយ​​ថ្ងៃ​ទី២ ឧសភា) ទើប​ Facebook ចាប់ផ្តើម​លក់​ភាគហ៊ុន​។
 
តើ Facebook មាន​ប្រាក់​ចំណូល និង​ប្រាក់​ចំណេញ​​ប៉ុន្មាន​ក្នុងមួយឆ្នាំៗ?
 
ចាប់ពីពេលនេះ​ទៅ ដោយ​​ Facebook ចង់​លក់​ភាគហ៊ុន​ នៅ​ក្នុង​ទីផ្សារ​មូលបត្រ Facebook មាន​កាតព្វកិច្ច​ផ្សព្វផ្សាយ​ជា​សាធារណៈ​ នូវ​ស្ថានភាព​ហិរញ្ញវត្ថុ និង​សកម្មភាព​ជំនួញ​របស់​ខ្លួន។

នៅ​ក្នុង​ឯកសារ ដែល​​បញ្ជូន​ទៅ​គណៈកម្មការ​មូលបត្រ Facebook បាន​បង្ហាញ​ថា៖

  • ប្រាក់ចំណូល​ប្រចាំ​ឆ្នាំ ២០១១ មាន ៣ ៧១១​​លាន​ដុល្លារ​
  • ប្រាក់​ចំណេញ​សុទ្ធ នៅ​ឆ្នាំ​២០១១ មាន ១០០០​លាន​ដុល្លារ
  • អ្នក​ប្រើប្រាស់សកម្ម​​ប្រចាំ​ខែ (Monthly active users) មាន ៨៤៥​លាន​នាក់ នៅ​ខែ​ធ្នូ ២០១១
  • អ្នក​ប្រើប្រាស់​សកម្ម​ប្រចាំ​ថ្ងៃ (Daily active users) មាន ៤៨៣លាន​នាក់

 
តើ​ប្រភពចំណូល​របស់ Facebook បាន​មក​ពីណា?
 
ប្រភពចំណូល​ធំបំផុត​របស់ Facebook គឺ​បាន​មក​ពី​ការ​ផ្សព្វផ្សាយ​ពាណិជ្ជកម្ម (Online advertisement)។ នៅ​ឆ្នាំ​២០១១ ប្រាក់ចំណូល ដែល​បាន​មក​ពី​ការ​ផ្សព្វផ្សាយ​ពាណិជ្ជកម្ម​ មាន​រហូតដល់​ទៅ ៣ ១៥០ ​​លាន​ដុល្លារ​ ពោលគឺ ប្រមាណ ៨៥% នៃ​ប្រាក់​ចំណុល​សរុប​ប្រចាំ​ឆ្នាំ។

ប្រភព​ចំណូល​ធំ​ទីពីរ គឺ​បាន​មក​ពី​​ក្រុមហ៊ុន Zynga (១២% នៃ​ប្រាក់​ចំណូល​សរុប​ប្រចាំ​ឆ្នាំ​២០១១)។ Zynga គឺ​ជា​ក្រុមហ៊ុន​ផលិត​ល្បែង​លើ​អ៊ីនធ័រនែត (Online Game) ដែល​​គេច្រើន​លេង​នៅលើ​ Facebook ដូចជា FarmVille, CastleVille, CityVille, Mafia Wars, Café World ។ល។

តើ​ក្រុមហ៊ុន Facebook មាន​តម្លៃ​ប៉ុន្មាន?​
 
វា​​អាស្រ័យ​ទៅលើ​​តម្លៃភាគហ៊ុន Facebook ដែល​អ្នក​វិនិយោគហ៊ាន​ឲ្យ នៅពេល​ដែល​ភាគហ៊ុន​​​ត្រូវ​ដាក់​លក់​នៅលើ​ទីផ្សារ នៅ​ក្នុងរយៈពេល​ប៉ុន្មាន​ខែ​ខាងមុខ។

ក៏ប៉ុន្តែ នៅពេលនេះ គេរំពឹង​ថា ក្រោយ​ពេល​ចូល​ក្នុង​ទីផ្សារ​មូលបត្រ ក្រុមហ៊ុន Facebook អាច​នឹង​មាន​តម្លៃ​រហូតដល់​ទៅ ១០០ពាន់លាន​ដុល្លារ។ បើសិន​ជា​ពិតជាដូចនេះ​មែន Facebook ដែល​ទើប​នឹង​បង្កើត​បាន​ ៨​ឆ្នាំ​នេះ នឹង​មាន​តម្លៃ​ខ្ពស់ជាង​ក្រុមហ៊ុន​ធំៗ​ និង​ចំណាស់ៗ​របស់​អាមេរិក ដូចជា Amazon, Caterpillar, Goldman Sachs, Ford Motor និង Boeing ជាដើម។

តើ​​អគ្គនាយក និង​ស្ថាបនិក​ Facebook (Mark Zuckerberg) មាន​ភាគហ៊ុន​ប៉ុន្មាន​?
 
លោក Mark Zuckerberg មាន​ចំណែកហ៊ុន​ ២៨,៤% ក្នុង​ក្រុមហ៊ុន​ Facebook ហើយ​ទទួល​បាន​ប្រាក់ចំណូល​ពី Facebook (ទាំង​ប្រាក់ខែ និង​ប្រាក់​ចំណូល​ផ្សេងទៀត) ចំនួន ១ ៤៩០ ០០០​ដុល្លារ (ឆ្នាំ​២០១១)។

ប្រសិន​បើ​តម្លៃ​ក្រុមហ៊ុន Facebook ពិត​ជា​កើនឡើង​រហូតដល់ ១០០ពាន់លាន​ដុល្លារ ដូច​គេ​រំពឹង​ទុកមែន ភាគហ៊ុន​របស់​លោក Mark Zuckerberg ក្នុង​ក្រុមហ៊ុន Facebook នឹង​មាន​តម្លៃ​រហូតដល់​ទៅ​ជាង ២៨ពាន់លាន​ដុល្លារ។ លោក Zuckerberg នឹង​ត្រូវក្លាយ​ជា​មហាសេដ្ឋី​ ដែលមាន​ទ្រព្យសម្បត្តិ​ច្រើន​ជាងគេ​ លំដាប់​ទី ៤ នៅ​សហរដ្ឋ​អាមេរិក និង ទី៩ នៅទូទាំង​ពិភពលោក។ សូម្បីតែ​បុគ្គលិក​របស់​ក្រុមហ៊ុន Facebook ក៏​អាច​ក្លាយ​ជា​សេដ្ឋី ដែលមាន​ទ្រព្យសម្បត្តិ​រាប់លាន​ដុល្លារ​ដែរ៕

សំណួរ-ចម្លើយ​ជុំវិញ​ការ​លក់​ភាគហ៊ុន​ជា​សាធារណៈ​របស់ Facebook

លោក Mark Zuckerberg អគ្គនាយក និង​ជា​អ្នក​បង្កើត​ Facebook
លោក Mark Zuckerberg អគ្គនាយក និង​ជា​អ្នក​បង្កើត​ Facebook
REUTERS/Robert Galbraith/Files

ដោយ សេង ឌីណា
កាលពីថ្ងៃ​ពុធ ១ កុម្ភៈ ម្សិលមិញ​នេះ Facebook ដែល​ជា​បណ្តាញ​សង្គម​តាម​អ៊ីនធ័រនែត​ដ៏ធំបំផុត នៅលើពិភពលោក បាន​បញ្ជូន​សំណុំឯកសារជាផ្លូវការ ទៅកាន់​គណៈកម្មការ​មូលបត្រ​អាមេរិក (SEC) ដើម្បី​សុំ​លក់​ភាគហ៊ុន នៅលើទីផ្សារ​មូលបត្រ។ ខាងក្រោម​នេះ គឺ​ជា​សំណួរ-ចម្លើយ​ជុំវិញ​ការ​​បោះជំហាន​ចូល​ទីផ្សារ​មូលបត្រ​របស់​ Facebook ។

ការពន្យល់​របស់​សេង ឌីណា
តើ​ Facebook គ្រោង​លក់​ភាគហ៊ុន​ប៉ុន្មាន?

Facebook មាន​គោលដៅ​ប្រមូល​លុយ​ឲ្យ​បាន ៥ពាន់លាន​ដុល្លារ ពី​ការ​លក់​ភាគហ៊ុន​ជាសាធារណៈ​ជាលើក​ដំបូង (Initial Public Offering) ​នេះ។ ចំនួននេះ​តិច​ជាង​ការ​រំពឹង​ទុក​ពីពេលមុន (១០ពាន់លាន​ដុល្លារ) ក៏ប៉ុន្តែ នៅតែ​ច្រើន​ជាង​​ការលក់​ភាគហ៊ុន​ដំបូង​របស់​ក្រុមហ៊ុន​អ៊ីនធ័រនែត​ផ្សេងៗ​ទៀត នាពេល​កន្លងមក។
នៅពេល​លក់​ភាគហ៊ុន​ជា​សាធារណៈ​លើក​ដំបូង កាលពី​ឆ្នាំ​២០០៤ Google លក់​បាន​តែ ១​ ៦៧០​លាន​ដុល្លារ​​ប៉ុណ្ណោះ។

តើ​ភាគហ៊ុន​របស់ Facebook មាន​តម្លៃ​ប៉ុន្មាន?

នៅក្នុង​ឯកសារ​ដែល​បញ្ជូន​ទៅ​គណៈកម្មការ​មូលបត្រ Facebook មិនទាន់​បាន​កំណត់​តម្លៃ​ភាគហ៊ុន ដែល​ត្រូវ​លក់​នៅឡើយទេ។ ចំនួន​ពិតប្រាកដ នៃ​​ភាគហ៊ុន ដែល​ត្រូវ​ដាក់លក់​ជា​សាធារណៈ ក៏​ Facebook មាន​បាន​បញ្ជាក់​នៅ​ក្នុង​ឯកសារ​​នេះ​ដែរ។​
នៅពេលបច្ចុប្បន្ន​នេះ គេ​ប៉ាន់ប្រមាណ​ថា ភាគហ៊ុន Facebook មាន​តម្លៃ ២៩,៧៣​ដុល្លារ ក្នុង​មួយ​ហ៊ុន។ ប៉ុន្តែ អ្នកខ្លះ​បានព្យាករ​ថា ភាគហ៊ុន​នេះ​អាច​នឹង​មាន​តម្លៃ​រហូតដល់​ទៅ ៤០ដុល្លារ ក្នុងមួយ​ហ៊ុន នៅពេល​ចាប់ផ្តើម​លក់​នៅលើ​ទីផ្សារ​មូលបត្រ។ ទោះជាយ៉ាងណា ទាំងនេះ គ្រាន់តែ​ការ​ប៉ាន់ស្មាន​តែ​ប៉ុណ្ណោះ។

នៅពេលណា ទើបគេ​អាច​​ចាប់ផ្តើម​ទិញភាគហ៊ុន​របស់ Facebook បាន?

កាលពី​ថ្ងៃ​ពុធ ម្សិលមិញ​នេះ Facebook គ្រាន់តែ​បញ្ជូន​ឯកសារ ដើម្បី​សុំ​លក់​ភាគហ៊ុន ប៉ុន្តែ នៅមិនទាន់​ចាប់ផ្តើម​លក់​ភាគហ៊ុន​នៅឡើយទេ។ ដូច្នេះ គេនៅមិនទាន់​អាច​ទិញ​ភាគហ៊ុន Facebook បាន​នៅឡើយទេ នៅពេលនេះ។ គេត្រូវ​រង់ចាំ​យ៉ាងតិច ៣ខែ​ទៀត (​ក្រោយ​​ថ្ងៃ​ទី២ ឧសភា) ទើប​ Facebook ចាប់ផ្តើម​លក់​ភាគហ៊ុន​។

តើ Facebook មាន​ប្រាក់​ចំណូល និង​ប្រាក់​ចំណេញ​​ប៉ុន្មាន​ក្នុងមួយឆ្នាំៗ?

ចាប់ពីពេលនេះ​ទៅ ដោយ​​ Facebook ចង់​លក់​ភាគហ៊ុន​ នៅ​ក្នុង​ទីផ្សារ​មូលបត្រ Facebook មាន​កាតព្វកិច្ច​ផ្សព្វផ្សាយ​ជា​សាធារណៈ​ នូវ​ស្ថានភាព​ហិរញ្ញវត្ថុ និង​សកម្មភាព​ជំនួញ​របស់​ខ្លួន។
នៅ​ក្នុង​ឯកសារ ដែល​​បញ្ជូន​ទៅ​គណៈកម្មការ​មូលបត្រ Facebook បាន​បង្ហាញ​ថា៖

  • ប្រាក់ចំណូល​ប្រចាំ​ឆ្នាំ ២០១១ មាន ៣ ៧១១​​លាន​ដុល្លារ​
  • ប្រាក់​ចំណេញ​សុទ្ធ នៅ​ឆ្នាំ​២០១១ មាន ១០០០​លាន​ដុល្លារ
  • អ្នក​ប្រើប្រាស់សកម្ម​​ប្រចាំ​ខែ (Monthly active users) មាន ៨៤៥​លាន​នាក់ នៅ​ខែ​ធ្នូ ២០១១
  • អ្នក​ប្រើប្រាស់​សកម្ម​ប្រចាំ​ថ្ងៃ (Daily active users) មាន ៤៨៣លាន​នាក់

តើ​ប្រភពចំណូល​របស់ Facebook បាន​មក​ពីណា?

ប្រភពចំណូល​ធំបំផុត​របស់ Facebook គឺ​បាន​មក​ពី​ការ​ផ្សព្វផ្សាយ​ពាណិជ្ជកម្ម (Online advertisement)។ នៅ​ឆ្នាំ​២០១១ ប្រាក់ចំណូល ដែល​បាន​មក​ពី​ការ​ផ្សព្វផ្សាយ​ពាណិជ្ជកម្ម​ មាន​រហូតដល់​ទៅ ៣ ១៥០ ​​លាន​ដុល្លារ​ ពោលគឺ ប្រមាណ ៨៥% នៃ​ប្រាក់​ចំណុល​សរុប​ប្រចាំ​ឆ្នាំ។
ប្រភព​ចំណូល​ធំ​ទីពីរ គឺ​បាន​មក​ពី​​ក្រុមហ៊ុន Zynga (១២% នៃ​ប្រាក់​ចំណូល​សរុប​ប្រចាំ​ឆ្នាំ​២០១១)។ Zynga គឺ​ជា​ក្រុមហ៊ុន​ផលិត​ល្បែង​លើ​អ៊ីនធ័រនែត (Online Game) ដែល​​គេច្រើន​លេង​នៅលើ​ Facebook ដូចជា FarmVille, CastleVille, CityVille, Mafia Wars, Café World ។ល។

តើ​ក្រុមហ៊ុន Facebook មាន​តម្លៃ​ប៉ុន្មាន?​

វា​​អាស្រ័យ​ទៅលើ​​តម្លៃភាគហ៊ុន Facebook ដែល​អ្នក​វិនិយោគហ៊ាន​ឲ្យ នៅពេល​ដែល​ភាគហ៊ុន​​​ត្រូវ​ដាក់​លក់​នៅលើ​ទីផ្សារ នៅ​ក្នុងរយៈពេល​ប៉ុន្មាន​ខែ​ខាងមុខ។
ក៏ប៉ុន្តែ នៅពេលនេះ គេរំពឹង​ថា ក្រោយ​ពេល​ចូល​ក្នុង​ទីផ្សារ​មូលបត្រ ក្រុមហ៊ុន Facebook អាច​នឹង​មាន​តម្លៃ​រហូតដល់​ទៅ ១០០ពាន់លាន​ដុល្លារ។ បើសិន​ជា​ពិតជាដូចនេះ​មែន Facebook ដែល​ទើប​នឹង​បង្កើត​បាន​ ៨​ឆ្នាំ​នេះ នឹង​មាន​តម្លៃ​ខ្ពស់ជាង​ក្រុមហ៊ុន​ធំៗ​ និង​ចំណាស់ៗ​របស់​អាមេរិក ដូចជា Amazon, Caterpillar, Goldman Sachs, Ford Motor និង Boeing ជាដើម។

តើ​​អគ្គនាយក និង​ស្ថាបនិក​ Facebook (Mark Zuckerberg) មាន​ភាគហ៊ុន​ប៉ុន្មាន​?

លោក Mark Zuckerberg មាន​ចំណែកហ៊ុន​ ២៨,៤% ក្នុង​ក្រុមហ៊ុន​ Facebook ហើយ​ទទួល​បាន​ប្រាក់ចំណូល​ពី Facebook (ទាំង​ប្រាក់ខែ និង​ប្រាក់​ចំណូល​ផ្សេងទៀត) ចំនួន ១ ៤៩០ ០០០​ដុល្លារ (ឆ្នាំ​២០១១)។
ប្រសិន​បើ​តម្លៃ​ក្រុមហ៊ុន Facebook ពិត​ជា​កើនឡើង​រហូតដល់ ១០០ពាន់លាន​ដុល្លារ ដូច​គេ​រំពឹង​ទុកមែន ភាគហ៊ុន​របស់​លោក Mark Zuckerberg ក្នុង​ក្រុមហ៊ុន Facebook នឹង​មាន​តម្លៃ​រហូតដល់​ទៅ​ជាង ២៨ពាន់លាន​ដុល្លារ។ លោក Zuckerberg នឹង​ត្រូវក្លាយ​ជា​មហាសេដ្ឋី​ ដែលមាន​ទ្រព្យសម្បត្តិ​ច្រើន​ជាងគេ​ លំដាប់​ទី ៤ នៅ​សហរដ្ឋ​អាមេរិក និង ទី៩ នៅទូទាំង​ពិភពលោក។ សូម្បីតែ​បុគ្គលិក​របស់​ក្រុមហ៊ុន Facebook ក៏​អាច​ក្លាយ​ជា​សេដ្ឋី ដែលមាន​ទ្រព្យសម្បត្តិ​រាប់លាន​ដុល្លារ​ដែរ៕
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