Type: Research paper
Subject: Human Resources Management (HRM)
Topic: Executory Arbitration
Style: APA
Number of source/references: 3
Order instructions:
Suppose that you are the HR manager for a company. Following a string of expensive law suits with former employees, your boss asks you to prepare a memo articulating whether or not your company should add a new policy in all employment agreements and employee handbooks which makes arbitration mandatory for any disputes arising out of employment with your company. Your boss is interested in reducing both the cost and public visibility of employment disputes, but she is also concerned about any legal problems with executory arbitration, including precedents, as well as any negative PR that might come out of such a move. Draft said memo thoroughly discussing the options and their implications. Be sure to address, at minimum, the following:
What are the advantages and disadvantages of arbitration as compared with the status quo of litigation? Are there any other alternatives worth considering?
Is executory arbitration legal? Are there any circumstances under which such an agreement might not be enforceable?
Even if it is legal, how are such agreements viewed generally? Are they perceived as fair among the general public? Are there any potential repercussions in that respect worth considering?
What are the implications concerning arbitration in terms of precedent and privacy? Do arbitration decisions create legal precedent? If so, can employees disclose information discussed in arbitration hearings to other parties without the company’s consent, such that it may be used in subsequent disputes?
This assignment should at a minimum contain 1,000 words of content (there are four parts, so this is ~250 words each). Word count does not include headings, cover pages, references, or question text (if you choose to include it in your paper); I am looking for 1,000 words of substance. Your paper should be in APA format including a properly formatted cover page (abstracts are optional) and a reference page with at least three (3) NEW references (“new” here means references that you have not already used in previous assignments in this course). Providing additional references to your assignments demonstrates your desire to conduct additional research on the topic area, and can improve your research skills.
With all assignments, include properly formatted in-text citations within the body of your work for each of your listed references so the reader can ascertain your original thoughts or ideas as well as the portion of your work that is credited to credible sources.
Executory Arbitration is a type of arbitration in which the parties agree on the terms of the arbitration.
Name of the student’s institution Tutoring Date of the course
In the name of: Human Resource Manager
To: The CEO of the company Date: March 25, 2021
The subject of this arbitration is “Executory Arbitration.”
Introduction
Executive arbitration is a method of resolving disputes that does not involve the use of the courts system. It is frequently employed in the resolution of commercial disputes. During arbitration, a single or more individuals (the arbitral tribunal, the arbiters, or the arbitrators) decide on a dispute, and the arbitral tribunal or arbitrators then deliver the arbitration decision or award. It is enforceable in court and legally binding on both sides until and until the parties involved insist that the arbitration procedure should not be considered final.
Executory Arbitration Offers a Number of Advantages
Because of the numerous advantages that arbitration has over litigation in the corporate world, businesses prefer to use arbitration to resolve disputes within their organizations. To begin, arbitration processes are significantly more rapid than litigation and court hearings in most cases. Because there is a limited right of appeal in arbitration, the processes are completed more quickly. In litigation processes, the right to appeal can cause the finality of the judgment to be delayed. An arbitration case can be resolved in around 475 days, according to research undertaken by Voronova (2018), but a similar case can be resolved in anywhere between 18 months and 3 years through the courts and the legal procedure (Voronova, 2018). Because of the time difference, arbitration is chosen over traditional legal proceedings. It is anticipated that the corporation will spend less time on dispute resolution, allowing for more time to be allocated to the organization’s development initiatives.
A similar distinction can be made between arbitration and court litigations. Hearings in court are always governed by procedural and statutory norms of procedure and procedure. Trials must be arranged in order to fit into the already packed calendar of the courts. However, arbitration processes can be scheduled to accommodate the availability and requirements of all parties engaged in the dispute (Stipanowich, 2010). Even at non-working hours and on non-working days, such as evenings and weekends, the hearing might be held. The parties involved are given the opportunity to establish limitations and guidelines for interviewing witnesses or exchanging documents prior to a hearing, as well as how the arbitration processes will be carried out and the level of detail that will be included in the arbitration ruling. The flexibility of arbitration hearings and processes allows for a reduction in the amount of time required for final conclusions to be delivered.
Furthermore, arbitration sessions are always less expensive than court litigation when compared to the latter. Arbitration hearings are less expensive than court proceedings, primarily because of the fixed timeframe for the completion of trials and discovery proceedings. Pre-hearing discoveries such as written depositions and interrogatories of witnesses cost a lot of money before a court hearing, which is why they are so expensive (Stipanoich, 2010). A court hearing, in a similar vein, necessitates the employment of attorneys, and the possibility of an appeal by one of the parties raises the entire cost. Although some litigation techniques, such as lawyer hiring, have been adopted through arbitrary processes, the costs of litigation have increased dramatically as a result. However, the cost of arbitration is significantly cheaper than the expense of litigation. Because of this, the adoption of arbitration as a method of conflict resolution in the company will aid in the preservation of company funds.
Aspects of Executory Arbitration that are disadvantageous
Despite the fact that arbitration is widely regarded as one of the most effective ways of conflict resolution between parties and individuals, it does have some drawbacks. One downside of arbitration is that it allows for only limited discovery. Because of the specified completion date for arbitration proceedings, there is only a limited amount of time to complete the investigation and acquire sufficient evidence (Stipanoich, 2010). Limited findings may result in unexpected testimonies and evidence being presented during the course of an arbitration hearing, which the concerned party may or may not be able to refute throughout the course of the hearing. In a same vein, there is no jury to decide the outcome of a disagreement. Instead, the arbitrators, who may be a single individual or a panel of three individuals, are responsible for making the final determination. Depending on the circumstances, the panel may or may not be able to maintain complete neutrality during the hearing process. As a result, arbitration can sometimes be skewed since the decision is made by a single individual or by a panel of individuals, resulting in more disagreement inside the organization.
Aside from that, an arbitration award or decision is final, and there is no right of appeal. When a decision does not go in their favor, many people want to have the option of filing an appeal. This is more likely to occur in court-related disputes. As a result, persons or parties who wish to participate in an arbitration procedure must thoroughly consider the possibility of losing their right to appeal before the hearing date. In a similar vein, they must carefully consider and select the technique they prefer for settling their disagreement.
Is Executory Arbitration a legal form of dispute resolution?
Legal and enforceable in court, executory arbitration proceedings are becoming increasingly popular. Arbitration laws are governed by a variety of legislation in different countries. If there is no distinct arbitration law, the primary body of law that applies to arbitration is always covered by either a separate arbitration law or the national Private International Law Act (Voronova, 2018). Furthermore, a substantial number of procedural statutes may contain provisions relating to arbitration in addition to other things. Executory arbitration agreements can not be enforced in circumstances such as when the State Arbitration act does not apply. Therefore, it is important for the company and the involved party to determine the federal law that applies. Judgments use various methods n determining the state law to apply. Similarly, the arbitration agreements are not enforceable by the law when any of the parties specify that the decisions and process of arbitration are not binding. The complaining party may opt to seek a solution from other methods of dispute resolutions like litigation courts.
How Arbitration Agreements are Viewed by the General Public Arbitration is perceived as one of the best methods for dispute resolution. Arbitration agreements always end peacefully. During the process of arbitration, the arbitrator keenly listens to both parties. With the oral statement and document provided by each party involved, the third party issues a resolution in the presence of a witness and tries to end the conflict as peacefully as possible. Therefore, decisions and rewards of arbitration are viewed as fair and are highly encouraged by the public in different countries. However, the only repercussion in arbitration processes is the presence of bias. Since the judgment is only offered by a single individual or a panel of three people, arbitration is prone to bias decisions. The arbitrator may lean on one side, offering judgment in favor of one party. Biasness, therefore, may lead to more disputes in the company.
Implications Concerning Arbitration in Terms of Precedent and Privacy
The main function of an arbitrator and a judge is to provide judgement to a dispute and offer a resolution. The judges mostly decide based on the state’s law that applies. By considering the applicable state rule that applies to a specific case, the judge interprets the chosen legal law (Guillaume, 2011). Nonetheless, arbitrators and judges are not robots offering awards and judgments. That means they enjoy individual freedom in the judgments they offer. The arbitration processes create legal precedents. Similarly, the agreements assure the involved parties of their privacy and confidentiality. It is illegal for the employee to disclose the information discussed in the arbitration hearing. Therefore, the information in the arbitration process should remain within the parties that were involved.
Conclusion Executory arbitration is one of the preferred methods of dispute resolution in organizations. The method has several advantages; first, it is cheaper compared to court litigations. The cost used by legal courts to hire a lawyer and to gather information is much higher than those of arbitration. Similarly, the processes are more flexible and faster than court litigation. Despite bearing many advantages, the method also has disadvantages. It provides limited time to gather evidence and necessary information about the case. Similarly, the arbitrator may be biased since the decision-making is entirely in the hands of a single individual or a panel of three people.
References
Guillaume, G. (2011). The use of precedent by international judges and arbitrators. Journal of International Dispute Settlement, 2(1), 5-23.
Stipanowich, T. J. (2010). Arbitration: The new litigation. U. Ill. L. Rev., 1.
VORONOVA, E. (2018). DISPUTE RESOLUTION CULTURE: MEDIATION. In Language. Culture. Translation (pp. 164-165).
