Alternative Dispute Resolution in Contracting - Term Paper Example

?  Alternative Dispute Resolution in Contracting       Alternative Dispute Resolution in Contracting Introduction Alternative Dispute Resolution refers to a variety of procedures aimed at resolving disputes more quickly, at affordable costs, and with significant contentment for the people involved than is probable through formal legal action. Alternative Dispute Resolution is a general term for the manner in which parties can resolve disputes, devoid of or through the aid of a third party. In spite of the previous opposition to Alternative Dispute Resolution by a large number of parties and their advocates, it has attained extensive acceptance among both the legal profession and the general public in recent times (Ury, 2000). In effect, some legal institutions now demand some parties to turn to Alternative Dispute Resolution of some form, normally meditation, before allowing the cases of the parties to be resolved. The escalating reputation of Alternative Dispute Resolution can be described by the rising caseload of conventional courts, the view that Alternative Dispute Resolution inflicts lesser costs than court cases, a preference for privacy, and the need of some parties to have enhanced influence over the choice of the individual or people who will tackle their dispute. Also, a number of the senior judges in certain areas are resiliently favoring the use of mediation in dealing with disputes. The Alternative Dispute Resolution methods are adaptable and flexible to the distinctiveness of each exclusive case and permit the parties to contemplate their individual risks of proceedings. Nevertheless, the use of Alternative Dispute Resolution is a consensual issue and cannot be employed without the agreement of the parties in a contract (Sourdin, 2002). This paper will look at Alternative Dispute Resolution in contracting. The paper will accomplish this by examining Alternative Dispute Resolution techniques, when Alternative Dispute Resolution should be used, steps associated with using Alternative Dispute Resolution concepts, and benefits of Alternative Dispute Resolution. Alternative Dispute Resolution is of two historic forms. One is techniques of tackling disputes away from the recognized judicial apparatus. Two is informal techniques pendant to or attached to official judicial apparatus. There are also independent techniques, for example, ombuds offices and mediation programs within an organization. Nevertheless, the techniques are identical, whether they are pendant or not and commonly employ the same skill or tool sets, which are largely divisions of the negotiation techniques (Lynch, 2001). In addition, Alternative Dispute Resolution comprises formal tribunals, informal tribunals, formal mediative processes, and informal mediative processes. The typical formal tribunal forms of Alternative Dispute Resolution are private judges and arbitration. The common formal mediative procedure is transfer for mediation before a court appointed mediation panel or mediator. Additionally, common informal techniques include intercession, transfer to non-formal authorities, and social processes (Kellett, 2007). The main variations between formal and informal procedures include the possession or absence of a formal structure for the procedure application and pendency to the procedure of a court. Requiring the services of an organizational ombudsman’s office is not considered to be a formal process. This is usually voluntary. The International Ombudsman Association Standards of Practice asserts that people should not be compelled to seek the services of an ombuds office. Also, organizational ombuds offices refer individuals to available conflict management alternatives in the organization, both interest-based and right-based, and formal and informal. Moreover, ombuds offices can provide a variety of alternatives themselves because they do not have the decision making authority. This range of alternatives is frequently ignored in existing discussions of Alternative Dispute Resolution (Ruth, 2000). Alternative Dispute Resolution regularly refers to external conflict management alternatives that are essential, but only utilized on occasion. An organizational ombuds office usually provides numerous internal alternatives that are utilized in numerous cases. Examples of these alternatives include reframing issues, receiving essential details, face-to-face, detecting and communicating about pattern of concerns, among others. There are number of Alternative Dispute Resolution techniques. They include mini-trial, mediation, arbitration, negotiation, and collaborative law. In a mini-trial, a representative with authority to settle the dispute is brought from both sides of the contracting parties. Neither representative should have liability for either preparing the claim, preparing the case for hearing, or refuting the claim. They listen to factual, abbreviated presentations from a representative of both parties and then talk about the settlement. It is guided by a customized recorded agreement between the parties. The contract is customized to the specific needs of the case (Sourdin, 2002). In addition, the mini-trial is made up of three stages, which normally should be concluded within ninety days. In mediation, there is the presence of a third party, a mediator, who aids the process of resolution between parties in a contract, but does not enforce a solution on the parties. In a number of countries, Alternative Dispute Resolution is identical with what is usually referred to as mediation in different countries (Sourdin, 2002). Mediation commonly grants a confidential and private platform in which the mediator eases communication between the parties in a contract in the desire of attaining a solution to the dispute. The mediator acts as a go-between with whom each party in a contract is supposed to feel at ease talking about his opinion of the dispute. The mediator attempts to focus the parties on the essential issues in dispute and on the appeals of every party to reach an agreement. Additionally, the mediator may recommend settlement alternatives for the parties to take into account, but the mediator’s observations are not obligatory on the parties. Also, it is not a must that the mediator be an attorney. It is also suggested that the mediator be an individual who both parties have confidence in (Parselle, 2005). Also, mediation is frequently carried out without the participation of a lawyer representing the parties. In arbitration, participation is normally deliberate. There is also a third party who, as a private moderator, inflicts a resolution to the parties in a contract. Arbitrations normally take place because parties in a contract agree that any forthcoming dispute will be resolved using arbitration. In recent times, the enforceability of clauses of arbitration, specifically in the perspective of consumer agreements, has caught the attention of legal institutions. Even though parties in a contract may appeal arbitration results, such appeals go through a rigorous standard of review. While mediation is intended to persuade the parties to reach an identical resolution, arbitration is an adversarial procedure that results in a resolution that is requisite on the parties in a contract (Charlton, 2000). The verdict may be made by one or three arbitrators based on the provisions of the arbitration clause. Also, in arbitration, the parties usually present documentary evidence, witnesses, and arguments to the arbitrators. Nevertheless, court rules of evidence and procedure are not normally applicable. The rules followed in this method are normally extremely flexible. Lawyers often participate in the cases, but it is not constantly compulsory to retain counsel. Arbitrators are normally lawyers, but they may also be other experts with skills or knowledge appropriate to the dispute. In addition, a large number of arbitration awards are observed willingly by the party on the losing side. Nevertheless, if the party on the losing side does not willingly abide by the resolution reached by the arbitrators, it may be put into effect by local courts with influence over the party on the losing side (Charlton, 2000). The United States, Mexico, and Canada are part of international contracts that necessitate their courts to impose arbitration verdicts with very minimal exclusions. Therefore, unlike a decision made by a court, there are extremely minimal grounds to appeal an unpleasant arbitration decision. In negotiation, participation is deliberate and there is no third party who inflicts a solution or aids the resolution procedure between conflicting parties in a contract. Also, a third party, for example, an expert friend or a chaplain or social worker or organizational ombudsperson may be guiding one or both the parties behind the occurrence. In addition, a contracting official is significant in dealing with the litigious issues before they turn into unwarranted contract disputes. By assessing all logical options for a negotiated resolution with the disputing parties, a contracting official can evade numerous disputes (Gates, 2011). Finally, in collaborative law, each party in a contract has a lawyer who aids the resolution procedure within exclusively contracted conditions. The parties reach a resolution with help from mutually-agreed specialists and their lawyers. Nonetheless, no one inflicts a solution on the parties. In contrast the practice is a formalized one that is part of the court system and legal action. Instead of being an Alternative Resolution technique, collaborative law is a proceedings alternative that happens to depend on Alternative Dispute Resolution like procedures and attitudes. In general, Alternative Dispute Resolution should be used whenever a dispute occurs as to the obligations or the rights of the parties under a contract and that dispute remains unsettled after examination of concerns by parties. The employment of Alternative Dispute Resolution signifies a business choice on the side of the parties, separated from the feelings encompassing a specific dispute, that an alternative technique of settling a claim is preferable to the risks, delay, and cost associated with formal legal action. Also, one should recall that Alternative Dispute Resolution is in numerous instances free from risk (Aureli & Frans, 2000). Therefore, if no solution is arrived at, the parties in the contract keep hold of all of their legal rights. The most appropriate applicants for Alternative Dispute Resolution action only address details which are in question, while the most demanding are those in which disputed law is utilized to obvious facts. Nevertheless, the fact that determination of the dispute may include legal issues, for example, contract analysis, does not disqualify that case from being considered. Similarly, the degree in controversy is a pertinent, but not influencing, element in deciding whether or not to employ Alternative Dispute Resolution. Also, it is resiliently recommended, that the parties give profound deliberation to utilizing Alternative Dispute Resolution in numerous disputes where the controversy is not costly. Alternative Dispute Resolution may also be specifically adequate in complex, multi-claim, and large disputes (Bercovitch & Jackson, 2009). Nevertheless, this is not a comprehensive list of components to look at when establishing whether or not to utilize Alternative Dispute Resolution in contracting. Every case will contain its specific features that might affect the parties’ decision whether or not to utilize Alternative Dispute Resolution. Therefore, every case should be examined while looking at its own advantages. The following steps are associated with using Alternative Dispute Resolution concepts in contracting. Step one includes unassisted negotiations. In this stage, parties attempt to work out contentious issues among themselves. In step two, prior to giving a final verdict on a claim, a contracting officer checks with an Alternative Dispute Resolution expert regarding whether the dispute appears susceptible to determination by Alternative Dispute Resolution. It is deemed necessary to employ Alternative Dispute Resolution at this premature stage in the procedure by suggesting the use of informal debates between the parties in a contract. Particularly, a contracting officer may want to suggest to the parties, one, or a blend, of the Alternative Dispute Resolution methods, and the parties in a contract may request a neutral party to conduct a mini-trial, mediation, arbitration, or collaborative law (Sourdin, 2002). In step three, if the dispute cannot be resolved by the parties either at step one or step two, a contracting officer must be ready to make a decision. If a claim comprises a realistic dispute, a contracting officer should send the parties a copy of the proposed conclusions of fact and inform then that all supporting information may be examined at the office of a contracting officer. The parties will also be needed to state in writing whether it corresponds with the proposed conclusions of fact and, if not, to point out which facts they are not in agreement with and provide proof in refutation. A contracting officer should then examine the parties’ statements and make any suitable improvements in the proposed conclusions of fact. In step four, a contracting officer is required to make a decision on each contract dispute claim in approximately two months from the request period of the parties, or within an adequate period. The verdict is a written record given to the parties containing the conclusive findings of fact and basis upon which the contracting officer’s conclusions are based. In step five, the parties may petition the verdict of the contracting officer to the relevant authorities. It is recognized that dealing with the dispute at the initial stage possible, by the most affordable and quickest technique, benefits both parties. In step six, the decision of the parties on whether or not to employ Alternative Dispute Resolution at this stage should be reached by assigned lawyer, in discussion with a contracting officer. If both parties are in agreement that the dispute is susceptible to resolve by Alternative Dispute Resolution, the subsequent step is to choose and consult and try to agree on a suitable procedure (Sourdin, 2002). Alternative Dispute Resolution in contracting also has a number of advantages. Alternative Dispute Resolution has been increasingly utilized globally, both integrated formally and alongside legal systems, so as to make the most of its benefits. Alternative Dispute Resolution has flexibility of procedure. The process is established and controlled by the disputing parties. Parties have an option of including a neutral third party to lead negotiations. The method is applicable to multi-party disputes. Alternative Dispute Resolution also provides sensible resolutions addressing the concerns of the parties. The technique is affordable to the sides concerned in a dispute. The method guarantees the preservation of reputations and the preservation of relationships. Alternative Dispute Resolution is also less complex. Alternative Dispute Resolution ensures permanence of agreements. Finally, Alternative Dispute Resolution guarantees privacy to the parties involved in a dispute (Lynch, 2001). Conclusion Alternative Dispute Resolution entails parties resolving disputes, with or without the help of a third party. The rising status of Alternative Dispute Resolution may be expressed by the escalating caseload of conventional courts, the view that the method inflicts lesser costs than court cases, a preference for privacy, and the need of some parties to have enhanced influence over the choice of the individual or people who will handle their dispute. The Alternative Dispute Resolution methods are adaptable and flexible to the distinctiveness of every case and permit the parties to consider their individual risks of proceedings. The technique is of two historic forms, techniques of tackling disputes away from the recognized judicial apparatus and informal techniques pendant to or attached to official judicial apparatus. Also Alternative Dispute Resolution techniques comprise mini-trial, mediation, arbitration, negotiation, and collaborative law (Sourdin, 2002). In general, it should be used whenever a dispute transpires in a contract and that dispute remains unsettled after examination of concerns by parties. Also, there are steps associated with using Alternative Dispute Resolution concepts in contracting. The method also has numerous benefits over other methods. Lastly, it is necessary to understand that dispute determination is one foremost objective of all the Alternative Dispute Resolution procedures. Therefore, if a procedure leads to resolve, it is a dispute resolution procedure. References Aureli, F., & Frans, B. M. (2000). Natural conflict resolution. California: University of California Press. Bercovitch, J., & Jackson, R. (2009). Conflict resolution in the twenty-first century: Principles, methods, and approaches. Michigan: University of Michigan Press. Charlton, R. (2000). Dispute resolution guidebook. Erskineville: Star Printery Limited. Gates, S. (2011). The negotiation book. New Jersey: John Wiley & Sons Publication. Kellett, P. M. (2007). Conflict dialogue. New York: Sage Publications. Lynch, J. (2001). ADR and beyond: A systems approach to conflict management. Negotiation Journal, 17(3), 213. Parselle, C. (2005). The complete mediator. New York: Weisberg Publications. Ruth, C. (2000). Dispute resolution guidebook. New South Wales: Ligare Printery Limited. Sourdin, T. (2002). Alternative dispute resolution. New South Wales: Lawbook Company. Ury, W. (2000). The third side: Why we fight and how we can stop. New York: Penguin Putnam. Read More