The parties to this dispute can seek Alternative Dispute Resolution (ADR) means. Inherently, MEER had instituted court proceedings against EDA for 11 contracts and obtained judgment for all its claims. However, MEER could not enforce the courts’ decisions due to the introduction of a new law that seeks to protect the energy sector in Abundi. This law provided that creditors could claim theory debts only without interest rates. Furthermore, the law provided for a payment mechanism that favours EDA. The domestic law of Abundi is not favourable to MEER. As discussed in brief 1, MEER could have possible legal solutions under international commercial law. On the other hand, the parties can choose ADR proceedings. This study analyzes the possible ADR mechanism the parties can use to achieve a desirable outcome.
Conciliation and mediation are ADR mechanisms that involve a neutral third party. These two are largely similar in their mode of operation, although there are some slight differences. In mediation, the mediator assists the parties in reaching a mutually beneficial settlement.[1] This process involves a multistage transaction between the parties so that they can clearly outline their interests. Mediation is closely related to arbitration and court litigation since they all seek to promote justice by efficiently disposing of matters. Mediation takes a more informal approach to solving disputes by focusing on real issues.[2] The parties are given an opportunity to express their feelings toward the subject matter in a less adversarial proceeding. In a good mediation setting, the neutral third party should be well qualified in economics or law so that they could easily understand the party’s concerns and offer guidance. Once the parties reach a resolution, they adopt an agreement which once executed becomes legally binding.
In conciliation, the neutral third party takes a more proactive role in the proceedings. They make proposals on the possible solutions which the parties consider.[3] Their role is distinct from mediators who only focus on the fault and oversee the parties generate solutions and choose the best option.[4] Attorneys in this process also aid in giving solutions unlike in mediation where they state the position of their clients. The aim of this process is to individualize the problem in order to reach a mutually beneficial solution. Conciliation is best used in labor and consumer disputes.
The best option to MEER and EDA dispute is mediation. This mechanism will serve the parties best since a neutral third party will oversee the process of dispute resolution. It is in the interest of both parties that the issue be resolved expeditiously so that they can focus on their various duties. Mediation offers them the security of enforceability since the agreement they adopt will be legally binding. Furthermore, since both parties are not legal persons, they will have an opportunity to be represented by Attorneys. These lawyers will advise them on the best solutions for their dispute.
During the mediation proceedings, both parties will outline their interests. MEER seeks to recover its debt of $ 25,499,000 (minus interests) from EDA. Inherently, as a result of this debt, the company’s operations have ceased leading to a loss of around four million dollars. MEER wishes that the good economic relation with EDA to be restored in order to improve the energy sector of Abundi. On the other hand, EDA as represented by the ministry of industry seeks leniency in the debt recovery plan. The overriding objective of Abundi’s government is to improve the energy sector. The possible solution for this problem is to apply the country’s laws with consideration of MEER economic welfare. Most probably, the parties will have to choose to forfeit either the debt interests or the incidental loss of four million dollars in order to reduce cost. With the correct mediation process, the parties will reach an amicable resolution.
Bibliography
Angra S. ‘Role of ADR in Commercial Disputes. Journal of Legal Studies & Research.’ (2022):394-400. https://thelawbrigade.com/wp-content/uploads/2022/03/Subah-Angra-JLSR.pdf
du Preez O. Conciliation: A founding element in claims management. Procedia-Social and Behavioral Sciences. (2014);119:115-23. https://www.sciencedirect.com/science/article/pii/S1877042814021065
Merkel-Meadow C. ‘Mediation, arbitration, and alternative dispute resolution (ADR).’ (2015) International Encyclopedia of the Social and Behavioral Sciences, Elsevier Ltd. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2608140
Strong SI. ‘Beyond international commercial arbitration-the promise of international commercial mediation.’ (2014) https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=1813&context=law_journal_law_policy
[1] Angra S. ‘Role of ADR in Commercial Disputes. Journal of Legal Studies & Research.’ (2022):394-400. https://thelawbrigade.com/wp-content/uploads/2022/03/Subah-Angra-JLSR.pdf
[2] Strong SI. ‘Beyond international commercial arbitration-the promise of international commercial mediation.’ (2014) https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=1813&context=law_journal_law_policy
[3] Menkel-Meadow C. ‘Mediation, arbitration, and alternative dispute resolution (ADR).’ (2015) International Encyclopedia of the Social and Behavioral Sciences, Elsevier Ltd. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2608140
[4] du Preez O. Conciliation: A founding element in claims management. Procedia-Social and Behavioral Sciences. (2014);119:115-23. https://www.sciencedirect.com/science/article/pii/S1877042814021065
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