“Demonstrate the scope of application of Alternative Dispute Resolution (ADR) in dispute settlement mechanisms”

1. Introduction: Law and order is one of the fundamental reasons that human race has strived to the modern age. In mankind’s race the society who has better access to law and implementation of the law takes place that society is even advanced among all of us. However, due to the population growth and the shift of the concentration of human race to economic growth has made the availability of judicial system time consuming and difficult. As an alternative to the legal systems parties involved in a dispute has tried to solve the matter peacefully by their own or sometimes with a help of any neutral third party (ies). Over the years this practice has become accepted to the societies. This process is now known as Alternative Dispute Resolution (ADR). During the past decade, ADR has supported throughout the world to facilitate the development of legal systems and promote civil society. It seek to stabilize developing societies and facilitate economic development by strengthening civil structures, improving access to justice, and reforming judicial systems.
2. Definition: ADR is usually used as an acronym for alternative dispute resolution, which is defined as any process or procedure other than adjudication by a presiding judge in court – litigation, in which a neutral third party participates to assist in the resolution of issues in controversy. In other words, the term “alternative dispute resolution” or “ADR” is often used to describe a wide variety of dispute resolution mechanisms that are short of, or alternative to, full-scale court processes. The term can refer to everything from facilitated settlement negotiations in which disputants are encouraged to negotiate directly with each other prior to some other legal process, to arbitration systems or mini-trials that look and feel very much like a courtroom process. Processes designed to manage community tension or facilitate community development issues can also be included within the rubric of ADR.

ADR has proven very helpful in many different types of legal disputes. These include divorces and other family matters, professional liability cases, personal injury situations, insurance issues, and commercial disputes.

1. A brief history of ADR:Dispute resolution outside of courts is not new; societies world-over have long used non-judicial, indigenous methods to resolve conflicts. What is new is the extensive promotion and proliferation of ADR models, wider use of court-connected ADR, and the increasing use of ADR as a tool to realize goals broader than the settlement of specific disputes.

The ADR movement in the United States was launched in the 1970s[1], beginning as a social movement to resolve community-wide civil rights disputes through mediation, and as a legal movement to address increased delay and expense in litigation arising from an overcrowded court system. Ever since, the legal ADR movement in the United States has grown rapidly, and has evolved from experimentation to institutionalization with the support of the American Bar Association, academics, courts, the U.S. Congress and state governments. For example, in response to the 1990 Civil Justice Reform Act requiring all U.S. federal district courts to develop a plan to reduce cost and delay in civil litigation, most district courts have authorized or established some form of ADR. Innovations in ADR models, expansion of government-mandated, court-based ADR in state and federal systems and increased interest in ADR by disputants has made the United States the richest source of experience in court-connected ADR.

While the court-connected ADR movement flourished in the U.S. legal community, other ADR advocates saw the use of ADR methods outside the court system as a means to generate solutions to complex problems that would better meet the needs of disputants and their communities, reduce reliance on the legal system, strengthen local civic institutions, preserve disputants’ relationships, and teach alternatives to violence or litigation for dispute settlement. In 1976, the San Francisco Community Boards program was established to further such goals. This experiment has spawned a variety of community-based ADR projects, such as school-based peer mediation programs and neighborhood justice centers.

In the 1980s, demand for ADR in the commercial sector began to grow as part of an effort to find more efficient and effective alternatives to litigation. Since this time, the use of private arbitration, mediation and other forms of ADR in the business setting has risen dramatically, accompanied by an explosion in the number of private firms offering ADR services.

The move from experimentation to institutionalization in the ADR field has also affected U.S. administrative rule-making and federal litigation practice. Laws now in place authorize and encourage agencies to use negotiation and other forms of ADR in rulemaking, public consultation, and administrative dispute resolution.

Internationally, the ADR movement has also taken off in both developed and developing countries. ADR models may be straight-forward imports of processes found in the United States or hybrid experiments mixing ADR models with elements of traditional dispute resolution. ADR processes are being implemented to meet a wide range of social, legal, commercial, and political goals. In the developing world, a number of countries are engaging in the ADR experiment, including Argentina, Bangladesh, Bolivia, Colombia, Ecuador, the Philippines, South Africa, Sri Lanka, Ukraine, and Uruguay. The experience of many of these countries provides important lessons drawn upon in this Guide.

The favorable characteristics have generated a growing interest in ADR among legal scholars.  One avenue of particular interest is the use of ADR in different legal traditions.  Though there is a common misperception that ADR is a novel western idea, many eastern legal systems have employed similar techniques for centuries.   In such systems, the use of ADR frequently stems from deeply held religious, ethical, and philosophical values.  In light of their experience, such systems offer valuable perspectives on the virtues of ADR, and its ideal role in the resolution of everyday disputes.  The following discussion examines three legal systems with longstanding ADR traditions – the Islamic, Talmudic, and Chinese[2].

1. Types of ADR: there are wide varieties of ADR. They are in individual forms and at the same time in the hybrid form as well. Some of the most widely used ADR are –
   1. Mediation: It is the facilitation of negotiations by a person not a party to the dispute (herein “third-party neutral”) who has no power to decide the issues, but whose function is to assist the parties in reaching settlement. The mediator serves to schedule and structure negotiations, acts as a catalyst, between the parties, focuses the discussions, facilitates exchange between the parties, and serves as an assessor – but not a judge – of the positions taken by the parties during the course of negotiations. With the parties’ consent, the mediator may take on additional functions such as proposing solutions to the problem. Nevertheless, as in traditional negotiation, the parties retain the power to resolve the issues through an informal, voluntary process, in order to reach a mutually acceptable agreement. Having agreed to a mediated settlement, parties can then make the results binding.
   2. Arbitration: It involves the use of a person — not a party to the dispute — to hear stipulated issues pursuant to procedures specified by the parties. Depending upon the agreement of the parties and any legal constraints against entering into binding arbitration, the decision of the arbitrator may or may not be binding. All or a portion of the issues — whether factual, legal or remedial — may be submitted to the arbitrator. Because arbitration is less formal than a courtroom proceeding, parties can agree to relax rules of evidence and utilize other time-saving devices.
   3. Fact-finding: This entails the investigation of specified issues by a neutral with subject matter expertise, and selected by the parties to the dispute. The process may be binding or nonbinding, but if the parties agree, the material presented by the fact-finder may be admissible as an established fact in a subsequent judicial or administrative hearing, or determinative of the issues presented. As an essentially investigatory process, fact-finding employs informal procedures. Because this ADR mechanism seeks to narrow factual or technical issues in dispute, fact-finding usually results in a report, testimony, or established fact which may be admitted as evidence, or in a binding or advisory opinion.
   4. Mini-trials: This permit the parties to present their case, or an agreed upon portion of it, to principals who have authority to settle the dispute (e.g., vice-president of a company and a senior EPA official) and, in some cases as agreed by the parties, to a neutral third-party advisor. Limited discovery may precede the case presentation. The presentation itself may be summary or an abbreviated hearing with testimony and cross-examination as the parties agree. Following the presentation, the principals reinstitute negotiations, possibly with the aid of the neutral as mediator. The principals are the decision makers while the third-party neutral, who usually has specialized subject matter expertise in trial procedures and evidence, acts as an advisor on potential rulings on issues if the dispute were to proceed to trial. This ADR mechanism is useful in narrowing factual issues or mixed questions of law and fact, and in giving the principals a realistic view of the strengths and weaknesses of their cases.
   5. Adjudication: It is the legal process by which an arbiter or judge reviews evidence and argumentation including legal reasoning set forth by opposing parties or litigants to come to a decision which determines rights and obligations between the parties involved.

The table below provides different aspects of each process to allow for a quick comparison between different types of ADR and to determine what can be achieved with each of them[3].

Characteristics	Negotiation	Mediation	Arbitration	Adjudication
Outcome	Mutually acceptable agreement sought	Mutually acceptable agreement sought	Sometimes principled decision supported by reasoned opinion; sometimes compromise without opinion	Principled decision supported by reasoned opinion; rarely compromise without opinion
Orientation	Future-oriented	Future-oriented	Past-oriented	Past-oriented
Private/public	Private	Private	Private, unless judicial review sought	Public
Voluntary/ involuntary	Voluntary	Voluntary, In some cases involuntary (mandated mediation)	Voluntary (when Based on contract clause–mandatory)	Involuntary
Binding/ non-binding	If agreement, enforceable as contract	If agreement, enforceable as contract, sometimes agreement embodied in court decree	Binding, subject to review on very limited grounds.	Binding, subject to appeal
Third party	No third-party facilitator	Party-selected outside facilitator	Party-selected decision maker often with specialized expertise	Imposed, third-party neutral decision-maker, generally with no specialized expertise in the dispute subject
Degree of formality	Usually informal, unstructured	Usually informal, partly structured	Procedurally less formal than litigation; procedural rules and substantive law may be set by parties	Formalized and highly structured by predetermined, rigid rules
Nature of processing	Unbounded presentation of evidence, arguments and interests	Unbounded presentation of evidence, arguments and interests	Opportunity for each party to present proofs and arguments	Opportunity for each party to present proofs and arguments

1. Characteristics of enforcement cases suitable for ADR: This section suggests characteristics of cases which may be most suitable for use of ADR. These characteristics are necessarily broad, as ADR may theoretically be used in any type of dispute. Enforcement personnel can use these characteristics to make a preliminary assessment of whether ADR should be considered for use in a particular case, including a discrete portion or issue in a case.

Although the characteristics of negotiated settlement, conciliation, mediation, arbitration, and other forms of community justice vary, all share a few common elements of distinction from the formal judicial structure. These elements permit them to address development objectives in a manner different from judicial systems.

1. Informality: Most fundamentally, ADR processes are less formal than judicial processes. In most cases, the rules of procedure are flexible, without formal pleadings, extensive written documentation, or rules of evidence. This informality is appealing and important for increasing access to dispute resolution for parts of the population who may be intimidated by or unable to participate in more formal systems. It is also important for reducing the delay and cost of dispute resolution. Most systems operate without formal representation.
2. Application of Equity: Equally important, ADR programs are instruments for the application of equity rather than the rule of law. Each case is decided by a third party, or negotiated between disputants themselves, based on principles and terms that seem equitable in the particular case, rather than on uniformly applied legal standards. ADR systems cannot be expected to establish legal precedent or implement changes in legal and social norms. ADR systems tend to achieve efficient settlements at the expense of consistent and uniform justice.

In societies where large parts of the population do not receive any real measure of justice under the formal legal system, the drawbacks of an informal approach to justice may not cause significant concern. Furthermore, the overall system of justice can mitigate the problems by ensuring that disputants have recourse to formal legal protections if the result of the informal system is unfair, and by monitoring the outcomes of the informal system to test for consistency and fairness.

1. Direct Participation and Communication between Disputants:  Other characteristics of ADR systems include more direct participation by the disputants in the process and in designing settlements, more direct dialogue and opportunity for reconciliation between disputants, potentially higher levels of confidentiality since public records are not typically kept, more flexibility in designing creative settlements, less power to subpoena information, and less direct power of enforcement.

The impact of these characteristics is not clear, even in the United States where ADR systems have been used and studied more extensively than in most developing countries. Many argue, however, that compliance and satisfaction with negotiated and mediated settlements exceed those measures for courtordered decisions. The participation of disputants in the settlement decision, the opportunity for reconciliation, and the flexibility in settlement design seem to be important factors in the higher reported rates of compliance and satisfaction.

1. Goals and Possible Uses of ADR: ADR systems may be designed to meet a wide variety of different goals. Some of these goals are directly related to improving the administration of justice and the settlement of particular disputes. Some, however, are related to other development objectives, such as economic restructuring, or the management of tensions and conflicts in communities. For instance, developing an efficient, consensual way to resolve land disputes may be critical to an AID mission not because of its commitment to strengthening the rule of law, but because land disputes threaten the social and economic stability of the country. Likewise, efficient dispute resolution procedures may be critical to economic development objectives where court delays or corruption inhibit foreign investment and economic restructuring.

Within the context of rule of law initiatives, ADR programs can:

• Support and complement court reform
• By-pass ineffective and discredited courts
• Increase popular satisfaction with dispute resolution
• Increase access to justice for disadvantaged groups
• Reduce delay in the resolution of disputes
• Reduce the cost of resolving disputes

In the context of other development objectives, ADR programs can:

• Increase civic engagement and create public processes to facilitate economic restructuring and other social change
• Help reduce the level of tension and conflict in a community
• Manage disputes and conflicts that may directly impair development initiatives

Experience suggests that ADR programs can have a positive impact on each of these development objectives, although the extent of the impact is very much dependent on other conditions within the country and the fit of the design and implementation of the program with the development objectives.

1. How can ADR help accomplish rule of law objectives?
   1. ADR can support and complement court reform:

Use ADR when:

Case backlog impairs court effectiveness.

Complex procedures impair court effectiveness.

Illiterate or poor cannot afford the courts or manage their way within them.

Small informal systems can better reach geographically dispersed population.

Do not use ADR when:

The courts’ reputation is sufficiently tainted to suggest that independent programs may enjoy more popular support.

ADR programs can support a mission objective to reform the court system in several ways. ADR can be used by the judiciary to test and demonstrate new procedures that might later be extended to or integrated with existing court procedures. ADR systems can be created as an option within the judicial system, either associated with the courts as a way of managing existing caseloads, or separate from the courts to provide dispute resolution for conflicts or constituencies not well served by the courts.

If the main problems with the courts are complex and inappropriate procedures, rather than institutional corruption or bias, ADR programs can provide streamlined procedures to accelerate case disposition. In some cases, these procedures may serve as models that can later be incorporated into formal court procedures. If so, court-annexed ADR may turn out to be a catalyst for more extensive court reform. Court-annexed ADR programs in Argentina, Colombia, and Uruguay are evolving as an integral part of programs for overall court reform[4]

ADR programs can also be designed to deal with cases that could enter the court system but may be resolved more efficiently (and perhaps with greater satisfaction) through ADR procedures. In these cases, ADR programs can complement court reform by reducing caseloads. They can also complement court reform by increasing access to dispute resolution services for disadvantaged groups (e.g., urban neighborhood and rural centers), providing legal advice to members of disadvantaged groups on whether and how to use the court system, and/or dealing with specialized cases that the courts are not well-equipped to handle (e.g., complex commercial disputes, labor-management disputes).

1. ADR can by-pass ineffective or discredited courts:

Use ADR when:

Working with or within the existing judicial system is unlikely to be effective or receive popular support.

Complex or technical disputes can be handled more effectively by specialized private ADR systems.

Do not use ADR when:

Official opposition is sufficiently strong and controlling to suppress competing programs. In these cases, links to the official judicial and legal system may be necessary for success.

When the civil court system has so many institutional weaknesses and failures (inadequate resources, corruption, systemic bias) that there is no near-term prospect of successful civil court reform, ADR programs may be an appropriate way to provide an alternative forum.

1. ADR can increase satisfaction of disputants with outcomes:

Use ADR when:

· High cost, long delay, and limited access undermine satisfaction with existing judicial processes.

Cultural norms emphasize the importance of reconciliation and relationships over “winning” in dispute resolution.

· Considerations of equity indicate that creativity and flexibility are needed to produce outcomes satisfactory to the parties.

· Low rates of compliance with court judgments (or a high rate of enforcement actions) indicate a need for systems that maximize the likelihood of voluntary compliance.

· The legal system is not very responsive to local conditions or local conditions vary.

Do not use ADR when:

· Cultural norms suggest a preference for formal, deterministic solutions.

· Cultural norms are discriminatory or biased and would be perpetuated in the ADR system.

Although increasing the satisfaction of disputants is one of the development objectives identified by earlier USAID studies, user satisfaction is often an indirect proxy for more focused concerns such as cost, access, and delay. The impact of ADR programs on these development objectives is addressed in other sections. Beyond these aspects, disputant confidence that the system is responsive to their needs. ADR programs can have a positive influence on all of these components of

disputant satisfaction. Satisfaction is also affected by more subtle factors, such as the creativity of outcomes, the impact of the ADR process on the ongoing business or personal relationships, and disputant.

Likewise, in Bangladesh, almost all users indicate that they prefer mediation to the formal court system and would use the mediation process again. In South Africa, users of commercial labor-management mediation and arbitration cite the positive impact of ADR, relative to litigation, on ongoing labor-management relations. And throughout Southeast Asia, disputants cite a general cultural preference for informal dispute resolution because of its ability to help reconcile and preserve personal and commercial relationships[5].

1. ADR programs can increase access to justice for disadvantaged groups:

Use ADR when:

· Use of formal court systems requires resources unavailable to sectors of the population.

· Formal court systems are biased against women, minorities, or other groups.

· Illiteracy prevents part of the population from using formal court systems.

· Distance from the courts impairs effective use for rural populations.

Do not use ADR when:

· Disadvantaged groups need to establish rights in order to reduce power imbalances.

· Local elites have the power to control program implementation.

· A number of barriers to access to the justice system can be addressed effectively in an ADR program.

1. Reducing the cost to parties: Many poor are denied access simply because they cannot afford to pay the registration and representation fees necessary to enter the formal legal system. Since cost is probably the largest barrier to formal dispute resolution for many people in developing countries.
2. Reducing the formality of the legal process: Several studies indicate that the formality of court systems intimidates and discourages use. In India and Bangladesh, for example, the court requirement of legal representation is both costly and intimidating for people who may not be comfortable interacting with lawyers from a different caste or class. In these and other countries, users of ADR programs have expressed a preference for submitting cases to mediators who are local residents and understand the local community. In Sri Lanka, users expressed their satisfaction at having their “stories” heard in an informal process. All of these factors contribute to greater usage of and preference for informal processes.
3. Overcoming the barrier of illiteracy: In some countries, access is effectively denied because the formal system requires a level of literacy that many in the country do not have. In these countries, the formal legal processes are especially intimidating for large numbers of illiterate citizens. In Bangladesh, the Madaripur Legal Aid Association was originally established to provide assistance and representation for the poor and illiterate. Their services are now dominated by their mediation program, in part because they found mediation to be more effective and accessible for this part of the population. ADR programs can be designed to rely on oral representations. Oral agreements may be enforced by traditional means of community peer pressure, eliminating the need for written documentation or formal enforcement mechanisms.
4. ADR programs can reduce delay in the resolution of disputes:

Use ADR when:

· Delays are caused by complex formal procedures.

· Court resources are insufficient to keep up with case backlog.

Do not use ADR when:

· Official intervention will impose complex procedures on ADR programs.

Delays are endemic in most court

Systems throughout the world and affect a number of development objectives. In some cases, delays are so extreme that they effectively deny justice, particularly to disadvantaged groups who may not be able to “grease the wheels” of the justice system. In other cases, delays in the resolution of commercial disputes impair economic development and undermine the efficiency of the economy. Informal dispute resolution (mediation and settlement programs), or simplified procedures for dispute resolution (arbitration systems), can significantly reduce dispute resolution delay, and indirectly reduce court backlog by redirecting cases that would otherwise go to court.

1. Conclusion:  As discussed in the Guide, ADR programs can serve as useful vehicles for promoting many rule of law and other development objectives. Properly designed ADR programs, undertaken under appropriate conditions, can support court reform, improve access to justice, increase disputant satisfaction with outcomes, reduce delay, and reduce the cost of resolving disputes. In addition, ADR programs can help prepare community leaders, increase civic engagement, facilitate public processes for managing change, reduce the level of community tension, and resolve development conflicts.

References:

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2. Howley, P. (2002). Breaking Spears and Mending Hearts: Peacemakers and Restorative Justice in Bougainville. Leichardt, Zed Books and Federation Press.
3. Howley, P. (no date). The Melanesian Way of Mediation and Restorative Justice. Madang, Divine Word University.
4. Lunabek, V. (2003). Restorative Programs in the Formal Justice System of Vanuatu. A Kind of Mending: Restorative Justice in the Pacific Islands. S. Dinnen. Canberra, Pandanus Books.
5. Moore, C. W. (1991). The Mediation Process: Practical Strategies for Resolving Conflict. San Francisco, Jossey-Bass.
6. Tagicakibau, E. G. (2004). A Survey to Determine the Feasibility of a Pacific Conflict Transformation Network. Suva, Pacific Concerns Resource Centre.
7. UNIFEM (2005). Monitoring Peace and Conflict in the Solomon Islands. Gendered Early Warning Report No. 1. Honiara, UNIFEM.
8. http://www.hg.org/adr.html
9. http://www.beyondintractability.org/2715