- Alternative Dispute Resolution and their Effectiveness
Alternative dispute resolution (ADR) refers to techniques and process of resolving disputes outside the court (Kelley 2013, 249). Parties in dispute usually find means to solve their conflict by finding a neutral ground other than litigation. Three methods of alternative dispute resolution are mainly used. These include negotiation, mediation, and arbitration.
Negotiation is a form of dispute resolution where parties in dispute come together to settle their differences by achieving a compromise (Kelley 2013, 249). Negotiation is usually used to settle an already existing problem or lay ground for the future relationship between two or more parties. Negotiation has the following characteristics: it is voluntary, multilateral, informal, and flexible. Negotiation is considered to be the best form of dispute resolution since it help in maintaining a good relationship between the parties. Negotiation is also preferred that the tradition litigation method since it is flexible, and it is binding on the parties involved.
Mediation is a form of alternative dispute resolution method where a neutral third party called the mediator is involved in settling a dispute between two or more parties (Fiadjoe2013, 47). The third party or the mediator helps the parties in a dispute to listen and understand each other’s interest. The mediator uses different techniques to facilitate dialog between the disputing parties, and help them to reach an agreement. The agreement is usually done in writing, and it is binding on each party involved in the dispute. Unlike the traditional litigation method of dispute resolution, mediation is considered efficient since it is cost effective, ensures confidentiality, increase control of the parties, and ensure mutuality between the disputing parties. Mediation usually is applied when solving civil matters such as family issues, workplace disputes, commercial disputes, and community disputes among others (Fiadjoe 2013, 49).
According to Cheung (2014, 19), arbitration is a technique of dispute resolution outside the court where parties in dispute agrees to use a third party referred to as arbitrator to listen to their dispute and make a decision that bid all the involved parties. According to Cheung (2014, 19), the ruling given by an arbitrator is referred to as arbiter award. Arbitration acts as a court where each party presents their grievances and a trained third party who impose a decision that is binding on the parties. Arbitration is often used in settling commercial dispute, workplace disputes, and consumer disputes. Unlike traditional litigation method, arbitration is considered efficient since it allows the disputing parties to choose their own tribunal to hear their case. The method is also faster, less costly, ensures confidentiality and has limited avenues of appeals (Kelley 2013, 249).
General and Specific Principles Established in Donoghue vs. Stevenson
In Donoghue vs. Stevenson case, Mrs. Donoghue drank a bottle of beer bought by her companion at a café. To her surprise, she realized that the beer had remains of a dead snail. Later Mrs. Donoghue fell ill and was diagnosed with gastroenteritis. Donoghue went to court and sued Mr. Stevenson, the ginger beer manufacturer, for negligence. In the decision, the House of Lords ruled that the manufacture Mr. Stevenson owed a duty of care toward his customers that was breached and therefore he was liable for negligence (French 2012, 135). From the case, the following general and specific principles were established:
From the House of Lords’ ruling, negligence is considered a tort and a person can take legal action against another person if the negligence of the other person causes injury or loss of property. Prior to the case, the plaintiff had to demonstrate contractual arrangement in order for negligence to be proven such as the sale of goods and agreement to provide a service. Therefore, Donoghue could not prove contractual arrangement with Stevenson since she had not purchased the drink. However, the case was ruled in favor of Donoghue and held Stevenson liable for negligence (French 2012, 135).
Duty of care
From the case, it was established that manufacturers have a duty of care to the final consumers of their products. In the case, Stevenson owed his customer duty of care by ensuring that all his products were fit for human consumption. This principle helps in protecting consumers from contaminated or faulty products (Murphy 2011, 99).
The neighbor principle requires one to take reasonable care to avoid acts or omissions that are likely to injure his or her neighbor (Murphy, 2011, 99). In this principle, the law defines neighbor as any person that is directly and closely affected by my acts that I should have them in mind as I act. The principle is an extension of negligence law since if a person fails to reasonably take care of his or her neighbor he can be held liable for negligence.
The Impact of Principles Established in Donoghue vs. Stevenson on Providers of Good and Services in the Hospitality and Tourism Industry
The principle of negligence, duty of care and neighbor’s principle have a huge impact on the providers of goods and services particularly in tourism and hospitality industry. First, the principles require manufacturers of the product to ensure duty of care to their consumers. Therefore, providers of products and services in the hospitality industry must protect their customers from any injury or damage that is likely to be caused by consumption of their products. The product and service providers must carry out inspections to ensure all their products are healthy and fit for human consumption. Failure to inspect products can result in negligence if a product causes harm or injury to customers, and the provider can be held liable to pay for damages. Another impact of the principles of the providers of product and services in the hospitality industry is that it upsurges the cost of business operations. Since providers must ensure duty of care when providing products and services, they incur extra cost such as an inspection fee in their operations. The providers must also meet various legal obligations before they commence their business, and this increases the cost of operation (Murphy 2011, 105).
Elements of a Valid Contract
A contract is an agreement between two or more parties that is enforceable by law (MacMillan & Stone 2012, 19). The following elements must be available to establish a contractual agreement between two or more parties:
Offer and Acceptance
For a contract to be considered valid, there must be an offer from one party and acceptance of the offer by the other party. An offer refers to the willingness to contract on specific terms and conditions that the other party is supposed to agree for the contract to be valid (MacMillan & Stone 2012, 20).
Consideration refers to the price to be paid in return for the offer given (MacMillan, & Stone 2012, 19). For a contract to be enforceable in a court of law, there must be something legally sufficient to be exchanged between the parties (Stone, & Devenney, 2013). For example, the price a party would pay for receiving a certain service.
Each party to a contract must have legal capacity to contract. Legal contractual capacity to contract includes being over the age of 18 years and being of sound mind. Miners, people of unsound mind and persons disqualified by law cannot take a valid contract (Friedman 2011, 54).
Intention to Create Legal Relations
According to Stone and Devenney, (2013, 9), a contract is valid if the agreement and the system to implement the agreement is legal. Any contract to do illegal activity is considered null and void, and they cannot be enforced in a court of law (Hillman 2012, 83).
For a contract to be valid, parties must demonstrate free will to contract (Stone, & Devenney, 2013). Therefore, all parties in the contract must disclose all matters that relate to the contract to ensure free consent. Free consent is established where there is no coercion, undue influence, misrepresentation of facts, frauds or mistake (Friedman 2011, 54).
For a contract to be valid there must be a possibility of performance of the activities presented in the offer. If the act in the contract is impossible, the contract is null and void and cannot be enforced in a court of law (MacMillan & Stone 2012, 23).
Key Element of Both the Liquor Act (2007) and the Gaming Machines Act (2001
Liquor act (2007) refers to laws and regulations to control the production sale, consumption and distribution of liquor that were enacted in 2007. The objective of the liquor act is to regulate and controls liquor business in relation to production, sales, consumption, promotion, and distribution. The act also aims at providing a balanced environment of the liquor industry by addressing public interest. This ensures that the liquor industry does not exploit or mislead the public. On the other hand, the gaming act (2001) refers to the laws and regulations that govern gaming industry that were enacted in 2001.
The key element in both liquor act and gaming act is the protection of the public. There are various regulations that protect the interest of the public from both industries. One of the regulations is the protection of minor. In the liquor act, alcohol should not be sold to persons under the age of 18 years. Similarly, the gaming act prohibits minor from participating in any bet. Another common regulation that aims at protecting the interest of the public in both acts is regulations on advertisements. Both acts provide regulations on how alcohol and gaming advertisement should be conducted. The legislations protect consumers from misleading information that can be presented in the adverts. These acts try to minimize the use of alcoholic products and gaming in the country (Foggo 2013, 9).
Implementation of Key Element
The licensing board does the implementation of both liquor act and gaming act. The licensing board has the mandate to ensure that both industry act to the interest of the public. It ensures that no alcohol is sold to minors, and they do not participate in betting activities. The licensing board protects minors by ensuring that gaming clubs and bars are located away from learning institutions. Additionally the licensing board regulates advertisement on the two industries. They ensure that not all advertisements relating to alcohol and betting are misleading to the public. Another way of ensuring implementation of the key element in both liquor and gaming acts is through the use of security agencies. Security agencies help in ensuring that the licensed firm to conduct the business complies with laws and regulations of the act (Foggo 2013, 9).
Usefulness of Discrimination Acts
In recent years, there are a big number of legislations that have been passed by the federal government and state government on discrimination. Among the discrimination legislation include state and federal antidiscrimination act, sex discrimination act and affirmative action act. These legislations have been very useful to the citizen since they prevent them against discrimination of any kind (Ronalds & Raper 2012, 135).These legislations have the following benefits to the citizens.
They ensure equal employment opportunities
Anti-discrimination laws ensure that every citizen has equal job opportunity without discrimination by gender, ethnicity, region, origin, color disability or any other kind of discrimination (Ronalds & Raper 2012, 135).
They ensure equal government services to the public
Anti-discrimination legislations ensure that every citizen has an equal chance of receiving government services such as healthcare, education, and protection without being discriminated.
Help citizens exercise their human rights
Anti-discrimination laws enables citizens to exercise their human rights such as freedom of speech, right to fair trial, freedom of movement, right to education, right to healthcare services, and rights to protection without being discriminated (Jetten, et al. 2013, 306).
Ensures fair representation of citizens
Some legislations against discrimination focus on fair representation of citizens in public offices. For example, affirmative action act focuses on gender balance in all public offices. Sex discrimination act requires women to be given equal chances with men when vying for public office (Schaffer, Agusti & Dhooge 2014, 69).
Promote national development
A country without discrimination provides a good environment for national development and growth. The legislations against discrimination have reduced many forms of discrimination, and this has resulted in positive national development (Ronalds & Raper, 2012, 138).
Cheung, S. O., 2014. Contractual Use of Alternative Dispute Resolution. In Construction Dispute Research (pp. 319-336). Springer International Publishing.
Fiadjoe, A., 2013. Alternative dispute resolution: a developing world perspective. Routledge.
Foggo, M. M., 2013. Re: Statutory review of the NSW Liquor Act 2007 and the NSW Gaming and Liquor Administration Act 2007.
Fredman, S. (2011). Discrimination law. Oxford University Press.
French, M. P., 2012. Donoghue v Stevenson and local authorities: can the tort of negligence be built on shaky foundations? A New Zealand perspective.
Friedman, L. M., 2011. Contract law in America: a social and economic case study. Quid Pro Books.
Hillman, R. A., 2012. The Richness of Contract Law (Vol. 28). Springer Science & Business Media.
Jetten, J., Branscombe, N. R., Iyer, A., &Asai, N.,2013. Appraising gender discrimination as legitimate or illegitimate: Antecedents and consequences. Handbook of gender and psychology, 306-322.
Kelley, G. S., 2013. Alternative Dispute Resolution. Construction Law: An Introduction for Engineers, Architects, and Contractors, 249-260.
MacMillan, C., & Stone, R., 2012. Elements of the Law of Contract. University of London.
Murphy, G., 2011. The snail and the ginger beer: the singular case of Donoghue v Stevenson. Commonwealth Law Bulletin, 37(1), 214-215.
Ronalds, C., & Raper, E.,2012. Discrimination law and practice. Federation Press.
Schaffer, R., Agusti, F., & Dhooge, L., 2014. International business law and its environment. Cengage Learning.
Stone, R., & Devenney, J., 2013. The modern law of contract. Routledge.