ADR methods in comparison with Court Litigation have various advantages though it is not free from different short comings explain Chapter-1 Introduction 1.1 Purpose It is becoming very common for our clients to ask about alternative dispute resolution (ADR). In fact, in many judicial districts in North Carolina, the district court has adopted rules for mandated ADR in family law cases. The goal of the Administrative Office of the Courts is to have statewide mandatory custody mediation and mandatory ADR for the resolution of financial issues related to separation and divorce. Even after you file a lawsuit, statistics show that 80 to 90 percent of court cases settle before trial. Unfortunately, many of these settlements occur only after the parties have expended significant amounts of money and time in the process. Many of these risks of losing time and money can be avoided if you are able to negotiate a solution directly and retain control over the outcome. 1.2 The Goals of ADR When a dispute arises, we work closely with our client to assess the dispute at its inception. Our ADR lawyers have developed a suitability screen to assist in deciding whether a particular dispute should be resolved through negotiation, litigation or ADR. Our attorneys focus on the rights and the interests of the parties, the relationships, and the outcomes sought. Our analysis recognizes that the underlying business interests are invariably as important to our clients as are issues such as legal rights.
Where there is a need to obtain an injunction, to protect a strategic interest, to defend a frivolous suit, or to establish a precedent, litigation may well be the best choice – and we are proud of our record in court. At the same time, for many business disputes, ADR can be an enormously powerful tool to resolve disputes early, cost-effectively and fairly. In sum, a sound ADR analysis enables our clients to look at a dispute as a unique problem to be solved. Through sophisticated ADR counseling and advocacy techniques, we can save time and money for our clients and help them achieve solutions to disputes consistent with the objectives of their business 1.3 History Of ADR Process Modern era Traditional people's mediation has always involved the parties remaining in contact for most or all of the mediation session. The innovation of separating the parties after (or sometimes before) a joint session and conducting the rest of the process without the parties in the same area was a major innovation and one that dramatically improved mediation's success rate. Traditional arbitration involved heads of trade guilds or other dominant authorities settling disputes. The modern innovation was to have commercial vendors of arbitrators, often ones with little or no social or political dominance over the parties. The advantage was that such persons are much more readily available. The disadvantage is that it does not involve the community of the parties. When wool contract arbitration was conducted by senior guild officials, the arbitrator combined a seasoned expert on the subject matter with a socially dominant individual whose patronage, good will and opinion were important. Iceland The Saga of Burnt Njal is the story of a mediator who was so successful that he eventually threatened the local power structure. It ends in tragedy with the unlawful burning of Njal alive in his home, the escape of a friend of the family, a mini-war and the eventual ending of the dispute by the intermarriage of the two strongest survivors. It illustrates that mediation was a powerful process in Iceland before the era of kings. Roman Empire Latin has a number of terms for mediators that predate the Roman Empire. Any time there are formal adjudicative processes it appears that there are informal ones as well. It is probably fruitless to attempt to determine which group had mediation first. Sub-Saharan Africa Before modern state law was introduced under colonialism; African customary legal systems mainly relied on mediation and conciliation. In many countries, these traditional mechanisms have been integrated into the official legal system. In Benin, specialized tribunaux de conciliation hears cases on a broad range of civil law matters. Results are then transmitted to the court of first instance where either a successful conciliation is confirmed or jurisdiction is assumed by the higher court. Similar tribunals also operate, in varying modes, in other francophone African countries. India Alternative dispute resolution in India is not new and it was in existence even under the previous Arbitration Act, 1940. The Arbitration and Conciliation Act, 1996 has been enacted to accommodate the harmonization mandates of UNCITRAL Model. To streamline the Indian legal system the traditional civil law known as Code of Civil Procedure, (CPC) 1908 has also been amended and section 89 has been introduced. Section 89 (1) of CPC provides an option for the settlement of disputes outside the court. It provides that where it appears to the court that there exist elements, which may be acceptable to the parties, the court may formulate the terms of a possible settlement and refer the same for arbitration, conciliation, mediation or judicial settlement. Due to extremely slow judicial process, there has been a big thrust on Alternate Dispute Resolution mechanisms in India. While Arbitration and Conciliation Act, 1996 is a fairly standard western approach towards ADR, the Lok Adalat system constituted under National Legal Services Authority Act, 1987 is a uniquely Indian approach. Pakistan The relevant laws (or particular provisions) dealing with the ADR are summarized as under: 1. S.89-A of the Civil Procedure Code, 1908 (as amended in 2002) read with Order X Rule 1-A (deals with alternative dispute resolution methods). 2. The Small Claims and Minor Offences Courts Ordinance, 2002. 3. Sections 102–106 of the Local Government Ordinance, 2001. 4. Sections 10 and 12 of the Family Courts Act, 1964. 5. Chapter XXII of the Code of Criminal Procedure, 1898 (summary trial provisions). 6. The Arbitration Act, 1940. 7. Articles 153–154 of the Constitution of Pakistan, 1973 (Council of Common Interest) Chapter-2 Concept of ADR 2.1 What is ADR
The term “alternative dispute resolution” or “ADR” is often used to describe a wide variety of dispute regulation mechanisms that are short of , or alternative to , full –scale court processes or judicial process. In other words, when disputes between parties are resolved through means which are alternative to formal litigation, this is called alternative dispute resolution. ADR is a process which may be freestanding (non-judicial) or court annexed (judicial), binding or non-binding, formal or informal, mandatory or voluntary in nature. It is to be emphasized that the term “ADR” is misleading in a sense that it is not always alternative to formal litigation and very often it is a part of litigation particularly for those ADR processes which are court connected. Professor Thomas J. Stipanowich states that the name ADR is an outmoded acronym that survives as a matter of convenience only. A California Task Force observed, “not only” is “alternative” unhelpful alternative to what? But “appropriate” better conveys the concept of “method best suited to resolving the dispute”. Professor Jean R.Sternlight has preferred the phrase ADR as “Appropriate Dispute Resolution” rather than “Alternative Dispute Resolution” 2.2Types and features
There are different types if ADR- 1. Basic-Negotiation 2.Hybrid –Appellate if ADR Mediation ENE Concikarion Settlement Arbitration Case evaluation Med-Arb Mini-Trial
2.3 Benefits cccccccccxn
ADR has been both; increasingly used alongside, and integrated formally, into legal systems internationally in order to capitalize on the typical advantages of ADR over litigation: • Suitability for multi-party disputes • Flexibility of procedure – the process is determined and controlled by the parties the dispute • Lower costs • Less complexity ("less is more") • Parties choice of neutral third party (and therefore expertise in area of dispute) to negotiations/adjudicate • Likelihood and speed of settlements • Practical solutions tailored to parties’ interests and needs (not rights and wants,as they may perceive them) • Durability of agreements • Confidentiality 2.4 Demerirs of ADR
There are some demerits such as: • It is not necessary the case that replacing or supplementing litigation with ADR could reduce corruption. To the extent that a culture of corruption exists , mediators , conciliators or arbitrators could fall prey to the same temptations as judge.4 • Although it is often true that ADR is less expensive than litigation, this does not necessarily mean that providing ADR solves problems of access to justice. Depending on the type of ADR and quality of the results, ADR may not provide access to justice at all.5 • In cases of informal ADR modes some elements of rule of law are mostly absent. For instance traditional Salish system in Bangladesh is dominated by rich and influential people and there is always a question of bias and arbitrariness. • In some types of disputes ADR method is not at all appropriate for example in cases of systemic injustice, discrimination or violation of human rights etc. • It is argued by some critics that the essential attributes of due process of law are often not followed in some forms of ADR. While the expansion of ADR has given some an Chapter-3ADR in Bangladesh THE courts in Bangladesh are overburdened with cases. Shortage of judges and courts make the problem more acute. Increasing the number of judges and courts requires time and money. The public and private universities are not producing enough law graduates to meet the shortage of judges and lawyers. According to records, about 750,000 cases are pending with the courts of judicial magistracy. The Supreme Court sources say about 500,000 cases, both civil and criminal, are pending with its Appellate Division and at least 300,000 other cases, including writ petitions, are pending before the High Court Division. The government is working to reform the legal system to introduce mandatory alternative dispute resolutions (ADR) in certain types of civil and criminal litigations. The litigants would go to court, as a last resort, once alternative dispute resolution is in place. It would save their costs and facilitate quicker dispute resolution. It would relieve the legal system. Mandatory ADR can resolve disputes involving compoundable offences like defamation. It is equally easy for ADR to sort out social disputes, cases of hurting religious sentiments, unlawful restraining or confinement of individuals, unlawful confinement to extract confession, forcible property restoration, assault, unlawful compulsory labour, criminal trespass and house trespass.
The experience of different countries in alternative dispute resolution of commercial and civil offences could be useful. Litigants in the UK, in particular, take the benefit of pre-action protocol. Pre-action protocol is the bedrock of the Lord Woolf reforms introduced in the UK in 1999. The pre-action protocols now cover eight types of civil disputes, including professional negligence, personal injury, and housing and repair. Australian state Queensland adopted it for personal injury disputes. The Queensland rules require the parties to exchange offers as well as information to settle their disputes. The cost consequences have to be borne by parties who reject reasonable offers.
The UK alternative dispute resolution does not allow mediation after proceedings are drawn. It does not consider it to be an effective way to encourage settlement. The statute requires the parties in some types of dispute in England to 'put their cards on the table' even before the litigation has commenced. The process is intended to encourage early settlement of disputes, avoiding recourse to the courts. The process is stipulated in the 'Pre Action Protocol', which forms a part of the Civil Procedure Rules 1999. The protocols stipulate pre-action procedures with which the prospective claimant and prospective defendant should comply. The protocols require the claimant to send the defendant a letter, setting out the reasons for the dispute, prior to commencing proceedings, known as the 'letter before action'. It requires the claimant to allow the defendant a minimum of 21 days to respond to the letter. The protocols cover settlement of cases of clinical negligence, personal injury, defamation, construction and engineering disputes and professional negligence.
The Pre-Action Protocol is designed to promote an open approach. It requires each party to prepare and exchange information about the case prior to the issue of proceedings. The claimant or plaintiff is also required to enclose copies of essential documents on which the claimant relies so that the dependant can prepare his or her defence. The defendant can request for copies of essential documents that he requires. The documents cannot be used for any purpose other than resolving the dispute. The claimant needs to convey, in the correspondence, the option of preferring mediation or another form of alternative dispute resolution. He must also state that the court proceedings will follow if a full response is not received within the stipulated time limit.
The pre-action process allows both the parties to be better informed as to each other's position and to review the merits of their respective claims and defences, all of which is directed towards encouraging early settlement of cases prior to issuing proceedings.
In case of introduction of Pre-action Protocol, the process starts with correspondence or communication between the parties. Once the Particulars of Claim have been served through letter or other formal manners, a defendant in the UK gets 14 days to respond. The defendant has several options available: to admit the claim, admit part of the claim, file an Acknowledgement of Service and serve a defence or challenge the jurisdiction of the court.
If the defendant admits all or part of the claim he should give written notice to the claimant. The claimant may then enter judgment against the defendant. If the defendant wants time to pay, a request for time to pay should be filed with the admission. This enables the defendant to propose a date for payment or request payment in installments. The defendant should file an Acknowledgement of Service where he is unable to file a Defence within the time limit. Filing an Acknowledgement of Service will give the defendant an additional 14 days in which to file and serve its Defence. The parties may also agree to extend the period for filing the Defence by up to 28 days. The period can be extended further with the permission of the court.
Once the Defence has been served, the claimant may file a Reply to the Defence in order to deal with any disputed issues of fact in the Defence. Although in England the Claim Form and Particulars of Claim are usually signed by the claimant himself and accompanied by statements of truth, occasionally he is signed by the claimant's solicitors.
In course of communications the parties exchange documents and other evidences in favour of their claim, counter claim and defence. The disclosure is the process by which the parties exchange documents relevant to the case. In a court litigation the disclosures by exchange of documents and evidences will usually be ordered early in the litigation after the statements of case have been filed at court, to enable each party to make a realistic assessment of its case sooner rather than later. Each party is required to produce a list of those documents which it has, or has had, in its possession which support or adversely affect its own case, or which support or adversely affect another party's case. The documents disclosed have to be relevant to the issue.
Each party has a duty to conduct a reasonable search to identify those documents and sign a disclosure statement to confirm that it has complied with its duty of disclosure. Once the parties have exchanged lists, either party has the right to inspect and request copies of any documents listed which are in the disclosing party's possession. However, the disclosing party may have a right or duty to withhold inspection, for instance, if a document is covered by privilege. A Pre-Action Protocol could also ensure that parties take into account, at an early stage, the interests of all of those who may be affected by the dispute and focus on whether any application needs to be made for relevant documents from a third party. Pre-Action Protocol of which alternative dispute resolutions (ADR) is a part, would benefit Bangladesh. Bangladesh can adopt it by amending the Code of Civil Procedure 1908.
Chapter-4 ADR methods comparison with Court Litigation
4.1 Court Litigation
If you ‘take someone to court’ you are bringing a lawsuit against them. The process that your lawsuit goes through is called court litigation. A lawsuit is a civil action that is bought by one party – the plaintiff – against a defendant for damages to recompense them for the defendant’s actions. The court litigation that your case moves through will be heard by a judge. They will decide whether you have cause to bring your lawsuit, and if they feel that your evidence is strong enough they will make a judgement in your favour. Court litigation is of course no guarantee of success. If your case fails there could be financial consequences. Bringing a lawsuit should not be entered into lightly, and you should always take legal advice about your lawsuit and at every stage of the litigation process. In the civil procedure that your lawsuit will move through there are set rules and procedures that must be obeyed at all times. UK court litigation is based on the common law adversarial system of dispute resolution. This simply means that you are bringing a case against another person within the current law. The success of your court litigation will largely depend on the evidence you can bring to your case. The judge that will preside over your case is looking for clear and unambiguous details about the case you are bringing. The judge will also want to see if you have attempted to resolve your dispute by all other means, such as mediation. If you live in Scotland or Northern Ireland your litigation will move through similar stages to courts in England and Wales. There are, however, differences in the court systems within Scotland and Northern Ireland. You should consult a solicitor about your court litigation before proceeding to ensure you are sure you have a strong case that is likely to result in a positive verdict for you. “If you would like to obtain legal advice about bringing a lawsuit, Contact Law can put you in touch with a local specialist litigation solicitor free of charge. So, if you have any questions or would like our help in finding local litigation solicitors please call us on 0808 2319 030 or complete the web-form above.” Last Updated on 02/03/2010
4.2 The expert compare the advantages and disadvantages of litigation and ADR
The Metropolitan Corporate Counsel August 2006 The Editor interviews Curtis Brown , Vice President, National Arbitration Forum; Kevin R. Casey , Partner, Stradley Ronon Stevens & Young, LLP; Jennifer Coffman , Senior Vice President, the American Arbitration Association; The Hon. William A. Dreier , Partner, Norris McLaughlin & Marcus P.A.; Jeanne C. Miller , who is a neutral with JAMS, The Resolution Experts; Michael S. Simon , Shareholder, ADR and Construction Law Practice Groups, Flaster/Greenberg P.C.; Peter J. Smith , Partner, Connell Foley LLP; Patricia Tilton , Partner, PricewaterhouseCoopers LLP; and Mark A. Welge , President, Welge Dispute Solutions LLC.
Editor: What factors help determine whether to use litigation or a form of ADR for resolving a dispute? Brown: The vast majority of private ADR (i.e., ADR not compelled by law) is initiated by pre-dispute ADR agreements rather than under post-dispute submissions. Post-dispute ADR agreements are rare because after the dispute has arisen, the parties are polarized. At least one of the parties almost always sees some kind of strategic advantage in declining an offer to mediate or arbitrate. Deciding whether to agree to use ADR before a dispute arises requires weighing the potential impact of litigation delay and expense. The average contract-based lawsuit takes approximately two years to resolve in court. The average duration of similar cases in arbitration can be as short as five or six months. If the extra 18 months of delay (and associated litigation expense) will impact the relationship between the parties or the economic health of either party, then ADR language should be included in the contract. Decision-maker expertise is another factor to consider. Although state and federal judges are extremely skilled and experienced, they may not have specific experience in the particular subject matter of the dispute. Through contractual ADR, parties can specify that their neutral will be an expert in medical device patents, subrogation disputes, admiralty law, or equipment leasing, for example. For some disputes, perhaps no particular decision-maker expertise is required. However, both parties may be able to reduce the risk of unexpected outcomes by agreeing in advance to have a domain expert serve as the decision maker who resolves disputes arising under the agreement.
Finally, parties should consider the potential value in continuing their relationship after the dispute has arisen and been resolved. ADR methods can often reduce the degree of contentiousness associated with litigation. After mediation or arbitration, parties are less likely to be standing on scorched earth and are more likely to continue to do business with one another.
Casey: ADR is a likely alternative to traditional litigation when one or more of the following factors are present:
1. The parties have an ongoing business relationship.
2. The parties are about the same size and have comparable market shares (neither party will view a jury trial as a forum to emphasize differences in size and an attempt by one party to "drive out" the other is unrealistic).
3. The dispute is factual or at least does not involve unsettled legal issues.
4. Each party can afford to lose.
5. The parties have reputations as tough competitors who are honest and fair. 6. The parties have reasonably stable businesses; otherwise, the economic leverage of a trial properly timed may be desirable.
7. A dispute would be publicly embarrassing.
8. Valuable evidence exists only in the form of hearsay or unauthenticated handwritten notes inadmissible at a trial.
ADR is not likely to be a good alternative to litigation when: a. The parties' principals are emotional and want to drive their adversary out of business. b. One or both parties typically bet on long shots. c. The parties have not already been involved in traditional litigation. d. The dispute involves a small business owner who wants to "shoot craps" with a jury against a large corporation. e. The client wants a test case to set precedent. f. One party seeks injunctive relief.
4.3Advantages of ADR over litigation: • Less time from beginning of controversy to resolution of dispute. • Less cost because of lower attorney fees less time away from work by corporate employee’s lower court costs for the prevailing party. • Parties can select a more experienced decision maker or facilitator than being randomly assigned to a judge. • Parties are able to select where the dispute will be heard: they are not bound to use the court system where each party does business. • The informality of ADR methods is less formidable than are the evidentiary rules governing court procedures. • ADR is more confidential than litigation which becomes a matter of public record. 4.4Disadvantages of ADR as compared to litigation The longer time tram for litigation may be advantageous to one of the parties if it will have to make a payment to the other party once the dispute is resolved. Passage of time naturally decreases both the cost to the defendant and the value of the plaintiff’s recovery. • The use of discovery in litigation allows each party to obtain valuable information from the other party. • The rule of law generally governs the dispute; if the law is on one party’s side. The case is more likely to be decided in that party’s favor. Chapter-5Conclusion There are many advantages of ADR and indeed Lord Woolf is particularly in favour of it. ADR can prove to be less expensive than courts, there is no need for representation, and the procedure is less formal among other reasons. However, there are also many disadvantages as well that have to be considered such as lack of public funding, lack of representation leading to imbalance of fairness, lack of formal procedure reducing certainty, restricted rights of appeal and the difficulty in enforcing awards. The main benefits of litigation that are recognised concern the impact that it can have on settling a dispute. It is by far the most intense and proven form of settling disputes, however, with this it also has a reputation as being the most devastating for the losing party, as well as both parties collectively in some respects. The advantages of this are that on many occasions the actual process of going to court is avoided. When litigation becomes a prospective entity i.e. one party begins to take the action of enforcing it, the opposing side is more likely to compromise. Neither side is likely, in the majority of cases, to actually want to go through the lengthy process of entering a courtroom so both sides are likely to strive to avoid this. In addition, if one party has begun enforcing litigation, and neither side want a court dispute they are more likely to indulge in different types of ADR. The Woolf reforms have clearly had an effect on the way in which lawyers conduct litigation. There has been a move away from the adversarial attitude to one of greater co-operation. This is encouraged by the pre-action protocols, which the parties have to use and which encourage early disclosure of information between the parties. As a result fewer claims are being issued in court. In conclusion, it is my sentiment that the courts do offer the best means of solving disputes for all of the reasons I mentioned earlier on in the essay, but mainly because it is the most effective method of enforcement. However, it does have its disadvantages and in some instances it is more beneficial to use a form of ADR as it also has it owns advantages such as the less formal approach and speed in which disputes are resolved.
Chapter-6 Bibliography 1.Thomas J . Stipenwich , ADR and the “Vanishing Trial”;The growth and Impact of “Alternative Dispute Resolution”, Journal of Empirical Legal Studies ,Volume1, Issue3, 843-912, November 2004 at page 845. 2.Report of the Task Force on the Quality of Justice Subcommittee on Alternative Dispute Resolution and Judicial System, Alternative Dispute Resolution in Civil Cases 3 (1999) ( hereinafter California Report on ADR In Civil Cases) 3Jean R. Sterlight, Is Binding Arbitration a Form of ADR?:An Argument That the term “ADR” has begun to uotline its usefulness,2000,J.Disp.Resol. P-97. 4. Jean R. Sternlight , Is alternative Dispute Resolution consistent with the Rule of Law?,56.De Paul Law Review 569(2006), William S. Boyd School of Law , university of Nevada , Las Vegas at page 591. 5.CPR Institute for Dispute Resolution, Law Firm Practices in ADR: 1994 Survey Findings (“CPR Survey”) p -2