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    #1

    Refraining from binding persons who have not consented

    For the underlined sentence, should it be interpreted as those natural mechanisms are perpetually applicable to binding persons who are suspected or under the legal proceedings, even they refuse to be bound by such system. please advise.

    "In a rule of law society, it is essential that alternative dispute mechanisms provide effective access to justice, while refraining from binding persons who have not consented to be bound by the mechanism."
    Last edited by cyrusevilming; 11-Oct-2015 at 09:16.

  1. Eckaslike's Avatar
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    #2

    Re: Refraining from binding persons who have not consented

    This section is discussing mediation and arbitration as the means of settling disputes. (Page 14, sub-factor 7.9 http://foldvary.net/econ200/measuring.pdf ).

    As such, these are services which parties use, of their own free will, to settle a dispute. Therefore, because the parties must have a choice as to whether or not to use those services, there can be no binding obligation upon them to do so. (i.e. They cannot be bound to take part in a system, or mechanism, which is meant to be voluntary.)

    In the UK the most well-known organisation dealing with mediation, arbitration and dispute resolution is ACAS.
    http://www.acas.org.uk/index.aspx?articleid=1461

    Here is an interesting video from their website which explains the difference between mediation, conciliation and arbitration.
    https://www.youtube.com/watch?t=54&v=LdWsOHBiIyY

    Here is another of their videos which talks about workplace disputes and their resolution.
    https://www.youtube.com/watch?t=1&v=C55ocfwCvKI
    Last edited by Eckaslike; 11-Oct-2015 at 12:57.

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    #3

    Re: Refraining from binding persons who have not consented

    Cyrus, did you notice that Eckaslike cited the source of your quoted text? You should have done that yourself in post #1, or at least have told us where you found it.

  2. konungursvia's Avatar
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    #4

    Re: Refraining from binding persons who have not consented

    No, it means, for instance, here in Canada, that because we have too many aboriginals (we call them Natives) in the prison system for relatively minor offenses, we are trying to get them out of our British style criminal courts by having judges admit the accused to tribal elder councils, for assessment and culturally traditional punishment or rehabilitation. This both clears the courts to a degree and empowers traditional communities. But no one is sent to tribal elders unless they agree to listen to them (to be bound by their decisions).

  3. Eckaslike's Avatar
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    #5

    Re: Refraining from binding persons who have not consented

    Yes that is the whole point of mediators and arbitrators, because they free up the courts and ensure that those who shouldn't be there in the first place can receive justice. That is true of industrial disputes as well where one party might take the other to court if it were not for the availability of impartial third party services.

    However, the document is one on world justice and is discussing mediation and arbitration in all its forms as an alternative method of dispute resolution. Disputes come in all shapes and sizes.

    "Finally, sub-factor 7.9 considers the accessibility, impartiality, and efficiency of alternative dispute resolution mechanisms —namely, mediators and arbitrators. In a rule of law society, it is essential that alternative dispute mechanisms provide effective access to justice; while refraining from binding persons who have not consented to be bound by the mechanism."

    I was looking at it from the workplace and industrial dispute aspect, you were looking at it from the social angle and the impact that alternative dispute mechanisms can have on individuals and groups within society. Both are right, as they are simply usages of alternative forms of arbitration or conciliation to resolve disputes and avoid using the courts.

    There are probably multiple other examples, none of which will be wrong: just different.
    Last edited by Eckaslike; 12-Oct-2015 at 14:25.

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