The distinction between political and judicial methods of dispute settlement are a convenient method of analysis, but are often used together. Broadly speaking judicial methods are those that require the parties to agree to abide by the settlement whereas political methods do not require such agreement. The International Centre for Settlement of Investment Disputes, (ICSID) is one of the few organizations that addresses political methods such as conciliation and fact finding. Show
DefinitionsConciliationConciliation differs from arbitration in one very important respect: the result of the former is not legally binding and thus has no influence on any further litigation of the dispute. Boczek [1] defined conciliation as “...a diplomatic method of third-party peaceful settlement..., whereby a dispute is referred by the parties, with their consent, to a permanent or ad hoc commission, ...whose task is impartially to examine the dispute and to prepare a report with the suggestion of a concrete proposal.” MediationMediation is clearly a political method of settlement. In mediation a third-party, acceptable to both parties to the dispute, effects communication between the parties and participates actively in the process of negotiation by offering proposals for settlement. Good OfficesSimilar to mediation is good offices, which is not mentioned in the UN Charter. Good offices is recognized by the Hague Convention for the Pacific Settlement of International Disputes of 1899 (187 CTS 410). It is like mediation except that the third-party does not participate actively in the negotiations. S/he merely effects communication between the parties saving them the difficulties of personal contact. And the parties have no prior commitment to the result. EnquiryEnquiry is also called inquiry or fact-finding, which is a good description of what it is. It may be used as an independent procedure or as a preliminary part of other methods of peaceful dispute settlement. It can and, in a few cases, it has led to settlements by exposing the truth of a situation to the parties involved. NegotiationNegotiation is a diplomatic procedure whereby representatives of states engage in discussing matters...between them...to clarify and reconcile their divergent positions and resolve the dispute.” [2] There is much more to learn about international dispute resolution. You can find this information in nearly any comprehensive general introduction to international law or in many specialized books. Begin your search for these kinds of resources in our catalog, UCLID. [1] Boleslaw A. Boczek, International
Law: A Dictionary 356 (Scarecrow Press, Dictionaries of International Law, No. 2, 2005) From: Canadian Intellectual Property Office Alternative dispute resolution (ADR) means solving disputes outside the courts. Unlike litigation, which will have a binary outcome (win or lose), parties can use ADR to tailor the outcome and the dispute resolution process. ADR includes negotiation, mediation and arbitration. It allows parties to combine these methods and tailor the rules to fit their needs. On this page
Benefits of ADRADR methods offer many potential advantages:
ADR could resolve a multi-jurisdictional (across provinces, countries) matter with a single process, thereby avoiding multiple lawsuits that often result in contrasting outcomes. Those benefits explain why ADR is often chosen over traditional litigation. ADR methods require the consent of both parties. Quite often, businesses enter into agreements that mandate the resolution of possible disputes through ADR methods, for reasons of confidentiality and cost control. Parties in a legal dispute have the option to pursue ADR methods in a parallel process, upon consent by all parties. This way, parties can resolve their differences even during litigation. Types of ADRADR provides a variety of ways to resolve your dispute. Even if litigation is already in progress, it is never too late to turn to ADR for a custom-tailored solution, as ADR can be pursued as a parallel process. NegotiationNegotiation is often the first approach taken to resolving an intellectual property (IP) dispute. The parties or their counsel hold discussions in the hope of reaching a mutually satisfactory agreement. A negotiated agreement can become a contract enforceable by the courts. MediationMediation is process where an impartial third party mediator assists the parties in reaching a resolution by facilitating communication between them. Mediators often highlight the parties' needs and interests and help overcome impasses. Unlike a judge or an arbitrator, the mediator does not decide who is right or wrong. Instead, the mediator provides insights and helps parties resolve the conflict through collaboration. Then, the parties can craft their own solution to the conflict rather than giving up decision-making control to a third party, such as a judge. In this way, mediation can reduce the uncertainty inherent in an adjudicated outcome. The mediator is normally chosen by the parties themselves. The parties can select a mediator who is knowledgeable in the subject matter. This may help parties solve the dispute without other subject matter experts who would need to provide evidence to a court concerning the technology, for example. Mediation can also result in the parties agreeing to cross-licenses and royalty rates, or other arrangements that may not be available if the case is decided by a court. A mediated agreement in the context of a court dispute may be approved by the court. This gives the agreement the same force and effect as a court decision. Generally, the parties share the mediator's fees. Some jurisdictions provide mediation or conciliation services free of charge. The Federal Court may, in some cases, provide the parties with a mediator. To summarize, mediation is a confidential process. It offers many benefits, including the following:
However, if infringement is the issue, mediation does not send a public message to deter other infringers. ArbitrationArbitration is a voluntary approach to dispute resolution that involves an arbitrator. The arbitrator is an impartial third party chosen by the parties themselves. The arbitrator hears both parties and their witnesses in the manner of a trial and provides a decision based on the evidence presented by each party and the applicable law. Arbitration is a more formal method of dispute resolution than mediation. It is simpler and faster than litigation. The arbitrator's final decision is both determinative and legally binding. It may be approved by a court, which makes it binding in the same way as a civil judgment. Arbitrations are intended to lead to finality. The options to see an appeal or judicial review of an arbitral decision are limited. Note: Arbitrators do not have to comply with strict procedural and evidentiary rules. The benefits of arbitration include the following:
Choosing between mediation and arbitrationThe choice between arbitration and mediation depends on your situation and most pressing issues. Mediation
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Get professional helpSolving conflicts involving IP rights is often complex. Consult an IP professional, such as an IP agent or lawyer, to discuss the next steps if you believe your IP rights are being infringed upon. If IP infringement is happening in another country, a Canadian IP professional may be able to coordinate with an IP professional in the other country to enforce your IP rights. Search for an IP professional ResourcesCanadian resources
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Date modified: 2021-06-28 What is it called when a third party makes a decision?In arbitration, the third party (an arbitrator or several arbitrators) will play an important role as it will render an arbitration award that will be binding on the parties. In comparison, in conciliation and mediation, the third party does not impose any binding decision.
What is it called when a third party helps those involved in a dispute to negotiate a solution acceptable to both sides?2. Arbitration. In arbitration, a neutral third party serves as a judge who is responsible for resolving the dispute. The arbitrator listens as each side argues its case and presents relevant evidence, then renders a binding decision.
When the parties contract for a person to settle the dispute for them it is called?Arbitration is an ADR (alternative dispute resolution) method where the disputing parties involved present their disagreement to one arbitrator or a panel of private, independent and qualified third party “arbitrators.” The arbitrator(s) determine the outcome of the case.
What is it called when two parties allow a third party to make a binding decision out of court?Arbitration is an out-of-court proceeding in which a neutral third party called an arbitrator hears evidence and then makes a binding decision.
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