Discuss the Characteristics, Advantages and Disadvantages of Alternative Dispute Resolution (ADR)


abstract

Alternative Dispute Resolution (ADR) consists of methods and techniques to deal with disputes without involving lawsuit or any other litigation process. Due to quicker and cost effective decision capability of ADR, it has gained noticeable popularity among the commercial and social parties around the world. Though the techniques have disadvantages, the benefits are widespread and considered as most effective ones. The major types of ADR and their characteristics are renowned amongst the law practitioners as well is to the lawyers. Thus, ADR serves significant deal of settling a dispute or conflict.

Table of Contents

Abstract

1. Introduction.. 2

2. Dispute Resolution.. 2

3. Alternative Dispute resolution (ADR). 2

4. Types of ADR.. 2

4.1 Negotiation.. 2

4.2 Mediation.. 2

4.3 Conciliation.. 2

4.4 Arbitration.. 2

5. Advantages of alternative dispute resolution.. 2

6. Disadvantages of Alternative dispute resolution.. 2

7. Conclusion.. 2

Bibliography

1. Introduction

In general terms, dispute is referred to as a disagreement or argument between the parties. The dispute generally takes place between two parties which can be a person or a group of person composing a single entity.  Parties comprise of plaintiff and defendant. In this case, plaintiff is the person who brings charges and files a suit and defendant is the person accused with charges.Dispute can be resolved in both using legal jurisdiction and also compromising settlement without reaching the court. This dispute can be between individuals and corporations and even between public officials.

Perhaps, different parties try to resolve the dispute which they considered to result with the best outcome. Thus there is necessity of Alternative Dispute Resolution (ADR)in order to ensure justified resolution without the involvement of legal jurisdiction and court. The aspects of ADR are perhaps extended since there are different methods and implications of resolving disputes. The resolution of ADR is not only for commercial conflicts but also in many cases found in the dispute resolution of public officials.

2. Dispute Resolution

Dispute resolution refers to the settlement of conflicts or arguments between various parties. The conflict is resolved by considering satisfying at least some of each side’s needs and addressing the interest.

Dispute resolution processes fall into two major types:

  1. Adjudicative processes, such as litigation or arbitration, in which a judge, jury or arbitrator determines the outcome.
  2. Consensual processes, such as collaborative law, mediation, conciliation, or negotiation, in which the parties attempt to reach agreement. These processes are not influenced by the court judgment and settlement is rather privately decided. Thus it is in simple form called alternative dispute resolution (ADR).

3. Alternative Dispute resolution (ADR)

Alternative Dispute Resolution (ADR) includes dispute resolution mechanisms and techniques that perform as a means for disagreeing parties to attain an agreement short of lawsuit. It is basically a substitute of formal court hearing. It is a cooperative term for the ways that parties can settle disputes, with (or without) the help of a third party. ADR are conducts and methods of resolving conflicts outside the judicial practice. Despite the resistance of many renowned parties and advocates, ADR has gained prevalent reception both among the general public and legal profession. Even now in many situations, court requires the parties to execute of some type of ADR before the permission of case trial.The rising popularity of ADR can be explained by the increasing caseload of traditional courts, the perception that ADR imposes fewer costs than litigation, a preference for confidentiality, and the desire of some parties to have greater control over the selection of the individual or individuals who will decide their dispute.[1]Many of the sovereign countries refer ADR as an extra judicial procedure (i.e. Australia). Some of the senior judiciary in certain jurisdictions (of which England and Wales is one) are strongly in favor of the use of mediation to settle disputes. [2]

The adoption of ADR depends on three major factors:

  1. The degree to which disputants and their advisors are responsive of ADR
  2. The sufficiency of the supply of ADR services for those that would wish to take-up ADR services
  3. The perceived advantages and disadvantages of ADR

Therefore, by satisfying the three crucial factors, ADR can be successfully implanted for resolving critical dispute issues. The third critical factor indicates the perception of parties regarding the pros and cons of ADR, since legal hearing is perhaps avoided. Thus, both the parties require being fully conscious of the advantages and disadvantages prior to the successful implication of ADR.

4. Types of ADR

Alternative Dispute Resolution is essentially categorized into 4 major types:

(a)     Negotiation

(b)     Mediation

(c)     Conciliation, and

(d)     Arbitration

ADR is also applicable alongside the existing legal system such Sharia courts within the jurisdiction of Common Law. The types of mentioned ADR techniques differ based on the countries culture and traditions.

The historic types of ADR techniques are defined in two ways:

(1)   Methods for resolving disputes outside of the official judicial mechanisms

(2)   Informal methods attached to official judicial mechanisms

Additionally there are independent methods, for example mediation programs and ombudsmen offices within organizations. Generally the independent ADR techniques apply similar techniques and set of negotiation skills in resolving conflicts.

4.1 Negotiation

ADR process is the simplest for negotiation.  According to this process two people having a dispute can negotiate and come to a solution themselves. The benefits to the parties involved are that it is completely private and it’s fast and cheap.

Where parties to a dispute cannot resolve it themselves they possess authority to instruct solicitors who will negotiate on their behalf.[3]  Even when negotiation fails at these early stages of a dispute and court proceedings start solicitors will usually continue to negotiate on their client’s behalf.  This results in many cases being settled out of court.

  4.2 Mediation

According to this ADR a neutral person (the mediator) assists the parties to reach a compromise.  The job of the mediator is to consult with each party and see how much common ground and interest there is between them.[4]  S/he should act as an initiator, taking offers between the parties.  The mediator doesn’t offer an opinion.  Mediation is most suitable where there is some chance that the parties will co-operate.  Mediation is not legally binding on the parties.

Based on the opinion of Centre for Dispute Resolution it is found that around 80% of the disputes thatare dealtreach a settlement without the need for any court action.[5]

4.3 Conciliation

Conciliation is similar to mediation where a neutral third party helps the parties to resolve their dispute; however, the conciliator plays a more dynamic role in the process.  S/he will be expected to recommend ways in which a compromise could be reached.  Conciliation is not legally binding on the parties.[6] The Advisory, Conciliation and Arbitration Service (ACAS) are used by many employers and Trade Unions to settle disputes before (and sometimes during) industrial action takes place.  The success rate of such ADR process is found to be around 60% without the necessity of hearing the Employment Tribunal.

4.4 arbitration

Among the all the ADR processes, arbitration is the most formal method used settle any dispute. In this process the parties with a disagreement transfer their dispute to a third party, who will make a judgment on their behalf.  This ruling will then be legally obligatory on the parties. Arbitration ADR is strictly followed by Arbitration Act 1996.[7] The agreement to go to arbitration can be made by the parties at any time.  It can be written into a business contract by what is called a Scott v Avery clause or the parties may just agree on arbitration when a dispute arises. The parties can agree the number of arbitrators who will hear their dispute.  It could be three, two or just one person.  The parties will normally appoint someone who is a professional in their particular area of business.  There is also the Institute of Arbitratorswho will provide trained conciliators to parties who wish to settle a dispute.[8]

 5. Advantages of alternative dispute resolution

ADR is beneficial for resolving any critical dispute. The result varies from situation to situation but outcomes are more effective than of legal procedure. There are few key benefits of ADR:

(a)   Cost Saving:One of the largest reasons parties choose to resolve their disputes outside of the courts is cost. Judicial process for resolving any disputes involves court fees, documentation fees, advocate’s fees and many other extra costs. Moreover, if there is corruption present, the cost may rise even higher.ADR does not involve expert fees or courts costs. Alternative dispute resolution usually costs much less than litigation, allowing smaller financial disputes a financially viable way to be settled. ADR also saves the money of government.

(b)   Speed: Adjudicative process for resolving conflicts are very lengthy since there are court decisions upon which the hearing is dependent. Litigation can take over a year to resolve because of different timing and dates involved. Matters that are being solved using the ADR method may take months or even just weeks to be resolved. ADR can be arranged by the parties and the panelist as soon as they are able to meet. Compared to the court process, where waits of 2-3 years are normal, dispute resolution is as fast as the parties want it to be.[9]

(c)    Control:The parties have control over some of the processes in ADR. Usually selecting the method of ADR, selecting the panelist for the dispute resolution; the length of the process; and, in a mediations case, even the outcome are controlled and maintained by the parties. In case of lawsuit process the control is totally possessed by the court and supreme authority. Opposed to the court system, where the legal system and the judge control every aspect, ADR is much more flexible. Furthermore, in the case of arbitration the parties have far more flexibility in choosing the application of relevant industry standards, domestic law, the law of a foreign country, a unique set of rules used by the arbitration service, or even religious law, in some cases.

(d)   Confidentiality: Privacy is fully securitized when it comes to Alternative Dispute Resolution. ADR is conducted in private, therefore avoiding publicity from the media.  The public are also unable to attend. On the other hand disputes resolved in court are public and the judgments awarded are also in public. ADR provides certain resolution processes such as, Mediation, arbitration, and mini trials that are conducted in private maintain strict confidentiality.

(e)   Experienced Neutral Panelists:The panelists are professional mediators and arbitrators with training and expertise in dispute resolution. Disputing parties are able to select their panelist from a list of qualified individuals who are specialized in specific aspects of environments. In the court system, binding decisions are made by judges who may lack expertise in different practices.

(f)     Cooperative Approach: All ADR services take place in a more informal, less confrontational atmosphere. This is more conducive to maintain a positive business relationship between the two parties. With mediation, specifically, the result is collaboration between the two parties. Therefore ADR is a process that looks into the best interest of both parties in order to conclude a compromised mutual decision.

(g)   Flexibility: Legal and non-legal disputes can be addressed during this process proving it to be more flexible. Some may think this is a suitable package in the sense that it takes into account fundamental concerns of the parties and offers remedies not available when at court.

(h)   Parties into Good Terms: The aim of ADR is to find a compromise solution which is satisfactory to both parties.  Court proceedings create a winner and a loser.  Using ADR to settle a dispute means businesses can remain on good terms and continue to trade with each other once their dispute is resolved.

The benefits or advantages of ADR is realized when the dispute or conflict is successfully resolved and all the participant parties respect and value the outcomes provided by such procedure. The failure to compromised decision pinpoints the weakness of ADR which to be adjusted for attaining fruitful outcome.

6. disadvantages of Alternative dispute resolution

There are several disadvantages blocking the way of successful dispute resolution and often affecting both parties sentiment to settle for a compromised decision. Some the disadvantages are:

(a)   Unequal Bargaining Power: In certain situations one side is able to control the other. Therefore a significant imbalance of power exists. For example, employment and divorce cases, making the courts a better option for a weak party.

(b)   Lack of Legal Proficiency- Where a dispute involves difficult legal points a mediator or arbitrator is unlikely to have the same legal expertise and knowledge as a judge. Dispute can be of various situations such as, commercial conflicts, social conflicts, legal conflicts and many others which require specialized mediator. Most of the cases the mediator does not possess a judge’s point of view.

(c)    No System of Specific Model- It isn’t easy to predict the outcome of a dispute decided through ADR as there is no system of precedent. Therefore, it is easier to obtain evidence from the other party in a lawsuit. Lack of system results in restricted prediction of outcomes.

(d)   Enforceability - Most forms of ADR are not legally binding, making any award difficult to enforce. Legal arbitration has some kind of process for internal appeals, which enables the decision as binding and only subject to the review of court.

(e)   Required Court Action: The arbitrator’s decision can require a court action if one of the parties refuse to accept the arbitrator’s decision. This would not only create chaos but also a mandatory review by the court. Thus, ADR sometimes raises the question of biasness of arbitrator’s decision. Also, there is very limited opportunity for judicial review of an arbitrator’s decision. A court might also overturn an arbitrator’s decision if it decided issues that were not within the scope of the arbitration agreement.

(f)     Might not be A Good Fit: Alternative dispute resolutions generally resolve only issues of money or civil disputes. Alternative dispute resolution proceedings will not result in injunctive orders. They cannot result in an order requiring one of the parties to do or cease doing a particular affirmative act.

(g)   Limits Discovery Process: ADR generally proceeding without the protections offered parties in litigation, such as those rules governed through discovery. Courts generally allow a great deal of latitude in the discovery process, which is not active in alternative dispute resolution.

7. Conclusion

Essentially the advantages and disadvantages of Alternative Dispute Resolution (ADR) are important to consider before agreeing to any sort of ADR techniques. It reduces the chances of unknowingly agreeing in any arbitration. The perception of advantages over the cons of ADR fully depends on situation to situation where the parties are in severe need of perusing such techniques to attain mutual interest. After satisfying certain standards, many lease agreements and employee contracts have mandatory arbitration provisions which will usually be enforced. ADR can be a good alternative to the courts as long as it is used in the exact way and for the exact type of disputes. Though there are few minor deficiencies, ADR can save both time and cost and legal fees.

Bibliography

“What Is ADR?”, Business and Society Exploring Solutions wiki, BASESwiki.org

Schwartz, David S., “Mandatory Arbitration and Fairness.” 84 Notre Dame L. Rev. 1247 (April 19, 2010)

Sustac, Zeno, Ignat, Claudiu. “Alternative ways of solving conflicts (ADR)”, Publisher: University, p. 242.

Lynch, J. “ADR and Beyond: A Systems Approach to Conflict Management”, Negotiation Journal, Volume 17, Number 3, July 2001, Volume, p. 213.

Gary Born. “International Commercial Arbitration” (2009 Kluwer)

International Institute for Conflict Prevention & Resolution.“Arbitration Appeal Procedure.”http://www.cpradr.org/ClausesRules/ArbitrationAppealProcedure/tabid/79/Default.aspx

“What You Need to Know about Dispute Resolution: The Guide to Dispute Resolution Processes.” American Bar Association. http://www.abanet.org/dispute/draftbrochure.pdf

Lynch, J. “ADR and Beyond: A Systems Approach to Conflict Management”, Negotiation Journal

Charlton, R. (2000), Dispute Resolution Guidebook. Star Printery Pty Ltd, Erskineville NSW.(2nd edition) Ligare Pty Ltd, Riverwood NSW.

Charlton, R. & Dewdney, M. (2004), The Mediator’s Handbook. Skills and Strategies for Practitioners.

Catherine Morris, ed. Negotiation in Conflict Transformation and Peace building: A Selected Bibliography. Victoria, Canada: Peacemakers Trust.

The Permanent Court of Arbitration. International Alternative Dispute Resolution: Past, Present and Future, (200


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[1]Totaro, Gianna, “Avoid court at all costs” The Australian Financial Review Nov. 14 2008. (April 19, 2010). Derived 01-12-2011.

[2]SSRN: http://ssrn.com/abstract=1599420. Derived 20-12-2011.

[3] Roger Fisher, William Ury, and Bruce Patton, Getting to Yes: Negotiating Agreement without Giving In (New York: Penguin, 1991. Derived on 01-12-2011.

[4]Simkin, W. E., (1971); Mediation and the Dynamics of Collective Bargaining; Bureau of National Affairs Books, Washington DC

[5]“Alternative Dispute Resolution”.www.nolo.com/legal-encyclopedia/mediation. Derived 25-11-2011.

[6]:Conciliation of Corporate body and Community Management”. www.legislation.qld.gov.au/Acts_SLs/Acts_SL.htm. Derived on 01-12-2011.

[7]An act to restate and improve the law relating to arbitration.www.legislation.gov.uk/ukpga/1996/23/contents. Derived 25-11-2011.

[8] “International Arbitration: Corporate Attitudes”. http://www.pwc.co.uk/eng/publications/international_arbitration_2008.html. Derived on 02-12-2011.

[9]“What You Need to Know about Dispute Resolution: The Guide to Dispute Resolution Processes.” American Bar Association. http://www.abanet.org/dispute/draftbrochure.pdf. Derived on 27-11-2011.