Managing Conflict through Mediation - Assignment Example

? Business Law Inserts His/her Inserts Grade Inserts (20, June, What do you understand by Alternative Dispute Resolution (ADR) and why it was recommended in the Woolf Report 1996? Alternative Dispute Resolution (ADR) is the phenomenon in which various dispute mechanisms are designed to act as an alternative to full-scale court processes. The term can also refer to everything that is facilitated by negotiations directly in order to resolve the issues between the disputants rather than encouraging legal processes or arbitration systems. It basically comprises of three categories; negotiation, mediation or arbitration system. It was studied that many critics strictly protested against the Civil Justice System of the United Kingdom. According to them the civil justice system was inefficient, slow, unwelcoming and outdated. Many attempts were made to resolve these issues and failed until Lord Woolf came up with his report in 1996. The report had recommendations based on ADR and it was assured by Woolf that if these recommendations were implemented, a new landscape for English Civil Justice would be created. Some of the recommendations that were put forward in the report were as follows: The litigation should be less complex Litigation should be done in a shorter time with effective results The cost of litigation should be affordable to the parties who do not have much financial resources. Judges should be supported so that they can manage litigation according to the new rules. The reason why ADR was recommended in the report was to make the Justice system more efficient and reliable. ADR played a vital role in bringing a revolution in the English Civil Justice System and it now also implemented in many other countries. Give three types of ADR and say why they are likely to be used. There are generally three types of Alternative Dispute Resolution techniques that are commonly practiced in the United Kingdom. They include negotiation, mediation and arbitration each of which will be discussed below: Negotiation Negotiation is the most direct way to resolve the issues between the two parties through their skillful negotiating capabilities. It is the technique in which the lawyers and members of the respective parties put fewer efforts into resolving the disputes through legal processes than they do in negotiating and come to an agreement (Bazerman & Neale, 1992). This is basically done by the negotiators who concentrate more on problem solving and trying to satisfy both the parties rather than identifying who is right and who is wrong. In the process of negotiation both the parties have total control on the situation throughout. They are free to talk and present their points and can even back off if they are not able to satisfy each other. There is no involvement of the third party (Dukes, 1993). It is not important for the parties to hire skillful and trained attorneys to implement the process if they have the ability to negotiate themselves. It is likely to be used when the two parties expect to have an interaction in the future since it is less confrontational than litigation. Mediation In the process of mediation, an independent mediator gets involved and works with the two parties to resolve the dispute. Mediators are highly trained professionals who have the ability to help the parties communicate and come to a mutually satisfied agreement (Acland, 1990). However, mediators neither have any right to impose a rule on any of the two parties nor to make decisions for them. They are just a source of communication between them. Mediation is successful if two parties satisfy each other and sign a legal agreement in which they agree to abide. In case of unsuccessful mediation no agreement takes place and the parties are likely to take the dispute to the court. In mediation the parties are found to resolve the dispute in a shorter period of time. The parties can start the process of mediation even if they have filed the case in the court which is much expensive and time consuming. It is not necessary to hire trained mediators from different organizations in case both parties have a common mediator whom they trust and can rely upon. Arbitration Although arbitrations are technically voluntary, it has been found that some people participate in arbitrations before a dispute even takes place. In the process of arbitration the dispute is forwarded to an impartial person, the arbitrator, who studies the case and comes up with a decision in favor of both the parties. The decision of the arbitrator cannot be taken further to the court and reversed until and unless extreme biasness has been displayed by him to any one of the party. As compared to negotiation and mediation, arbitration takes place in a much formal manner. An arbitration case is heard much faster to that of a court case and it is also less expensive than litigation. It is likely to be used because the parties have the authority to decide what rules should be followed in the procedures such as discovery and identification of the evidence. A lot of time is consumed in discovery as far as court case is concerned. What is significant about a Scott v Avery clause? Anyone who has studied about the Arbitration technique would also have come across the Scott v Avery Clause. The clause refers to the contract between the two parties that they will submit the dispute to the arbitration before taking the case to the court (Andrew & Keren, 2011). However, they are few people who have experienced this clause and many are even not able to understand it yet. There are some organizations who have insisted to include this law in their contract. For example, Bytech and Arpatech included the Scott v Avery Clause (Meadow, 1985). The Arpatech clause stated that in case of any dispute between the two organizations, the case will be referred to arbitration in the mutually decided place by the parties. The case will then be studied according to the rules of Arbitration and the Appeal of the Arpatech. The above clause means that neither of the two parties have the right to take the case to the court before it has been referred to the arbitration. In this case if Arpatech has got any kind of problem with Bytech, it is obligatory that Arpatech first undergo the arbitration process which would decide to resolve the issue appropriately. In case Arpatech has forwarded the dispute to the court directly it would be of no use and nothing would be done. This clause is significant in case of the contracts between the business organizations that have complex relationships and which would be difficult to explain to the court. Therefore it is important to involve an arbitrator which has the clear understanding of the situation. The arbitrator will be able to come up with a fair solution in a shorter period of time and would also be less expensive as compared to litigation. It will also consume less time to improve the situation between the two organizations. Give four alleged advantages of ADR to parties in dispute. The four alleged advantages of Alternative Dispute Resolution to parties in dispute are as follows: Speed It is considered as the biggest advantage of implementing ADR techniques to resolve the dispute between the two parties. No one can deny the fact that the court trials take a lot of time to come with a solution whereas the ADR is swift. Furthermore, many jurisdictions could take months or even years before the dispute can even be presented in front of the jury. This is ridiculous. It is very true that time is money in the legal world. In commercial cases the lawyers intentionally takes more time to do the proceedings just to increase their overall costs which benefits them and their businesses. This is not the case when ADR is implemented to resolve the dispute. With the help of the ADR techniques the disputants are able to finish the dispute in a short span of time which is surely fruitful for them. Cost The reason why many parties are attracted towards the ADR is because they are way cheaper as compared to the court trials. It has been counted as one of the biggest aspects why many organizations have encouraged taking up the ADR prior to any legal proceedings. It is likely that both the parties have to wait for a long period of time for the procedures that increases the costs of the judges exponentially. But as far as ADR is concerned it offers the advantage of getting efficient, quicker and cheaper results than the court trials which automatically means that less amount of money is spent by both the parties. According to the research of Professor Hazel Genn on the mediation scheme (Folger & Bush, 1994), the cases that are settled through the ADR techniques (mediation technique) are cheaper than the cases settled by the courts. Flexibility The flexibility of ADR is the major reason for its implementation by many organizations. It allows the disputants to choose the technique according to their wish to govern the meeting between them. They can choose their standards which are based on the domestic laws or the laws of the foreign country. This makes the situation very easier and the parties are able to come to a final decision quickly as everything has been set according to their demands. Involvement of Expertise The parties are allowed to hire trained and skillful mediator or arbitrator who has got the ability to handle the issues appropriately. In court trials, a lot of technical knowledge and complex procedures are involved that are difficult to understand which makes the trial go on for a longer period. It is also a very expensive process to call expert evidence that provide the relevant information to the judge. Moreover, it takes a lot of time to satisfy the judge or to explain him the situation. On the other hand if the arbitrator or mediator has the background of the relevant field, the situation would not be the same and the parties will be able to reach the core of the subject easily and the dispute will be resolved quickly. All in all, ADR has contributed a lot to revolutionize the civil justice system throughout the world. Time and money are the two aspects that are essential in the legal world. And with the help of ADR the disputants are able to resolve the issue quickly and by spending less amount of money. Indeed the two major aspects that makes ADR better than court trials to a great extent. Why have some academics expressed criticism of ADR? Along with some outrageous advantages of ADR it is also true that some academics expressed criticism of ADR. The reasons are highlighted as follows: Unequal Bargaining Power There are certain situations in which a party may be superior over the other. Divorce case is the best example of such situations (Mnookin & Kornhauser, 1979). It is likely that cases of such nature should be handed over to the courts so that a fairer decision could be made. No guaranteed solution With the exception of arbitration, the ADR techniques are not always able to resolve the dispute (Messick, 2005). This means that the parties are wasting their time and money to resolve the issue outside the court and coming up with no solution and end up taking the case to the court. Lack of Expertise There are certain disputes which have a complex nature. Under such circumstances that parties are unable to find a mediator or an arbitrator who could deal with the issue appropriately (Hoffman, 1997). There are not many mediators or arbitrators available in the market to resolve such issues. Therefore to avoid this uncertainty, referring the court would be a better option. Arbitration decisions cannot be reversed Once a neutral arbitrator has made the decision, the parties do not have any right to appeal against it. This is a very critical situation. There may be issues in which the decision is in favor of any one of the party but it cannot be reversed at all. The other party has no other option except to agree with the terms presented by the arbitrator. This is not the case with the court trial processes. If any of the disputants think that the decision made by the court is wrong, he can further appeal to the higher court. No enforceability It has been noted that most of the ADR techniques are legally binding. This makes it difficult for the mediators or arbitrators to enforce judgment. It depends upon the disputants whether they are happy with the judgment or not. Bibliography Acland, A. F. 1990. Managing Conflict through Mediation. Hutchinson Business, 46: 278-299. Andrew, T. & Keren T. 2011. O’er Judges’ Fingers, Who Straight Dream on Fees. Scott v Avery Clauses, 77: 423-427. Bazerman, M. H. & Neale, M. A. (1992). Negotiating Rationally. New York Free Press. 55: 337-350. Dukes, F. 1993. Public Conflict Resolution–Administrative Approach. Negotiation Journal, London. Folger, J. & Bush, R. 1994. The Promise of Mediation. Responding to Conflict through Empowerment and Recognition. 23: 120-142. Hoffman, D. 1997. Tools of the Trade: A Manual for the Settlement-Oriented Mediator. Harvard Law Review, 76: 10-34. Meadow, C. 1985. For and Against Settlement. Uses and Abuses of the Mandatory Settlement Conference. 33: 221-250. Messick, R. E. 2005. Alternative Dispute Resolution: When It Works, When It Doesn’t. The World Bank, Public Sector Group, 1-4. Mnookin, R. H. & Kornhauser, L. A. 1979. Bargaining in the shadow of the law. The case of divorce. Yale Law Journal, 98(950). Read More