Alternative Dispute Resolution - Essay Example

Alternative Dispute Resolution (ADR) The term ‘Alternative Dispute Resolution’ (ADR) refers to a wide range of resolution methods used as an alternative to legal court proceedings. As Berger (2000) rightly puts it, “ADR is generally defined as the use f non-litigation process to resolve disagreements to the satisfaction of all parties” (Berger, 2000, p.82). The alternative mechanism is expected to facilitate rather speedy and effective resolution. It would also avoid unnecessary delay in justice dispensation. Alternative resolutions became common practice as the number of disputes has been increasing in the US courts. Recently ADR gained wide appreciation and legitimacy in modern states too as its applicability and practicability has increased considerably. This paper seeks to explore the various factors associated with alternative dispute resolutions; and special efforts are made to report the legal and social benefits of ADR. Types of ADR The types of Alternative Resolutions vary according to the nature of disputes and the choice of parties. However, there are certain common ADR options that include both court annexed ADR and private modes. They can be listed as follows; Mediation/conciliation Arbitration Mediation-arbitration Mini-trial Early neutral evaluation Summary jury trial Mediation/conciliation Mediation must be the most accepted mode of resolution in the United States. This method is also termed as conciliation because the parties themselves resolve their disputes in the presence of a neutral third party. The main feature of this method is that it takes place at the parties’ commitment and the success depends on voluntary initiative to bargain and negotiate. However, the mediator does not impose a final decision over the disputes but only helps parties to reach settlement. Parties enjoy maximum freedom to explain their stories and to disclose their stance. Furthermore, unlike litigation processes, ADR method allows parties to decide their mediator and to design strategies for the resolution. The role of the third party is to create an opportunity for the parties to sit together and to disclose their position to each other. In order to enhance the resolution process, the facilitator may arrange separate sessions as well as joint meetings. Arbitration As it is in mediation, arbitration also renders freedom to parties to choose their third party who would hear the disputes. The major difference with the arbitration is that the final verdict of the dispute will be imposed by the third party that is the arbitrator. Although arbitration takes place in private, it is enforceable by the legal system. Therefore, as compared to mediation, parties have less freedom in this mode of ADR. Once the ‘reward’ is given, it does not have a further process of appeal. Although this method is absolutely a private arrangement, arbitration resolutions can be enforced like any other legal decision of a federal court. The method has its own pros and corns. Although a dispute can be easily resolved without much delay, in practical sense to what extent the method ensures justice is suspicious. Yet parties tend to rely on this method because of several other reasons. This procedure has its own common features. Among them the first one is the agreement between the parties regarding their willingness to seek the resolution through arbitration. The consent or agreement between the parties is the initial requirement for the international arbitration. The agreement must comply with the national law and international treaties of arbitration. Mediation-arbitration As the term indicates, it is a combined mode of two ADR methods. The mediator/facilitator tries to bring the parties to resolution. If the mediator fails to bring the parties to settlement, they can move to arbitration process where the third party imposes the final decision (Gersch, 2003, pp.9-10). The arbitrator can be the same mediator or another as it depends on the choice of the parties. Mini trial Mini trial is one of the ADR options that particularly include comparatively complex disputes which demands professional approach. The case is professionally presented before the third party as if it is in a court. The top management of both parties will represent the trial. It helps the parties to understand the strength and weakness of their positions and thereby enhances their willingness to negotiate. Early neutral evaluation Early neutral evaluation is the process of analyzing the strength and weakness of the case with the help of a well-informed person. Parties usually seek advice from an experienced individual of the related area. The dispute analysis helps them to understand the unrealistic aspects of their case. Probably it would force them to compromise with the opponent other than moving to formal justice system. Summary jury trial This method provides parties with an opportunity to try their cases before a group of jurors. The group would hear the dispute and give advisory opinion to the parties concerned. This process helps parties to anticipate the result of the trial that would take place in a legal court. Thus, summary jury trial is intended to assess the facts and to encourage the parties to meet settlement.. Advantages 1. Flexibility, speed and reduction of costs are the major advantages of alternative dispute resolutions (Goh G M., 2007, p.250). 2. Parties come to mutual agreement and therefore as compared to litigation, ADR produces definite and positive outcomes (Ramsey, 2007, p.897). 3. In traditional court system, the judge imposes the final decision and either of the parties feels discontent. However, ADR offers rather mutual settlement and it would preserve the relationship between the parties in future. 4. Arbitration process often takes place between employers and labors or between commercial entrepreneurs. Hence, it has positive effects on their future business operations. 5. Options like mini-trial, avoid unnecessary and prolonged hearing in traditional court. 6. ADR also allows direct interaction between the parties which would encourage their sustainable relationship. 7. Parties themselves decide the outcomes of the trial. 8. ADR allows confidential discussion. Disadvantages 1. possible over simplification of complicated and technical issues 2. Possible failure of resolution due to the lacking interest of any of the parties 3. ADR may not be necessarily cost effective; especially for smaller disputes (Source: Hibberd & Newman, 1999, p. 116) 4. Consumers do not have perfect information about the quality of service and the risks associated with the ADR providers (Buscaglia, 2000, p.82). Effects on justice system Many of the modern states have incorporated ADR as the most effective method of dispute resolution. It has been widely accepted as the technique to ease the caseload of judicial courts. As Hartley (2002, p. 20) states, judges and other court personnel have been allowed to focus on more complex cases, as minor civil cases and domestic disputes are being taken to ADR system. Although the nature of disputes carried to ADR is not defined, mostly family cases, commercial and labor disputes are being transferred to ADR (Buscaglia, 2000, p.84). One of the major advantages of the ADR is that many of the cases can be settled outside the courtroom as the parties involved can very well come in touch and design ways and means to solve the disputes. Besides, the unnecessary burden on the jury and the judicial system as a whole can up to an extend be alleviated due to ADR. However, it is imperative that there are clear cut legislations and universally accepted codes or principles with regard to the underlying factors based on which the ADR is framed in each jurisdiction. Conclusion Alternative methods are exceedingly significant for resolving disputes in a cost effective manner. As the judicial courts have been heaving with cases, ADR can reduce backlog and ensure more viable solutions to parties. Since ADR takes place in private, it doesn’t have the complexities of formal judicial system. The ADR system has grown to be an inseparable part of justice system in the United States and other developed nations. Presentation Presentation is the sole potentially effective method of convincing the audience the intended ideas that anyone has. Therefore, it is imperative that one’s presentation should be a well designed strategic introduction of the various aspects of the specific subject. Presentation sets the individuals on leadership and forces them to be well informed on the topic. In this respect, it is one’s knowledge that makes the person confident in his/her position and provides him/her with the necessary prerequisites for effective presentation. Similarly, one’s skill of communication is yet another significant factor that can contribute to the effectiveness of one’s presentation. For this, it is essential that the person should have a clear idea of the objectives of the presentation. Finally, presentation should be put on a par with the standard of the audience. Things I learned from the Presentation Successful completion of every endeavor depends on well assigned goals and efficiently organized human efforts. Short term accomplishments also require rather intensive actions and immediate strategies. Under such conditions, certain individuals have pivotal roles and remarkable responsibilities to accomplish the intended mission. The time taken for the completion of the task may not actually indicate the significance of the particular action. In the case of the ADR project, it has convinced me of the various benefits of team work, common goals and the unique way of accomplishing such goals through equally responsible individual endeavors. References Buscaglia E & Ratliff W E, 2000, Law and Economics in Developing Countries, Hoover Press. Breger M J, (Ed.), 2001, Federal Administrative Dispute Resolution Desk book, American Bar Association. Gersch A, 2003, Resolving Disagreements in Special Educational Needs: A Practical Guide to Conciliation and Mediation, Routledge. Goh G M., 2007, Dispute Settlement in International Space Law: A Multi-door Courthouse for Outer Space, Martinus Nijhoff Publishers. Hartley R E, 2002, Alternative Dispute Resolution in Civil Justice Systems, LFB Scholarly Publishing LLC. Hibberd P R & Newman P, 1999, ADR and Adjudication in Construction Disputes, Wiley-Blackwell Ramsey V., 2007, Construction Law Handbook, Thomas Telford. Read More