“Alternative Dispute Resolution (ADR) is a generic term used to describe a range of procedures designed to provide ways of resolving a dispute as an alternative to court procedures.”- explain
1. Introduction
Going to experiment to have a judge hear confirmation and formulate a decision is sometimes the most effective way of resolving a difficult legal dispute. However, it is also one of the slowest and most exclusive ways of resolving a dispute.
Therefore, one may want to think other methods of dispute resolution. That is alternative dispute resolution (ADR). This paper gives an impression of dispute resolution alternatives, such as: negotiation; mediation; neutral evaluation; and arbitration. This document provides the reasons for using ADR, advantages and disadvantages of ADR, its effectiveness, works of dispute resolution services and so on. However, as only about three percent of proceedings filed with the court ever reach the stage of going to trial, many are no longer using the term “alternative” when referring to these methods, but instead use the term “appropriate” dispute resolution. This guide will refer to all these methods.
2. Alternative Dispute Resolution (ADR)
Alternative Dispute Resolution is a series of positive and efficient events for resolving disputes through the mutual approval of the parties concerned. ADR typically refers to processes and techniques of resolving disputes that fall outside of the judicial process (formal litigation – court). It is a procedure planned to bring together the disputing parties in a complaint in order to offer them a chance to determine the argument themselves with the assistance of a neutral third party. ADR supports the parties to employ in interest-based negotiations—a problem-solving process to expand a solution equally. Courts are increasingly involved some parties to develop ADR of some type, most often mediation, before allowing the parties’ cases to be heard. There are generally four groups of ADR. These are mediation, arbitration, negotiation and collaborative law. Conciliation is sometimes included as a fifth.
A neutral third party known as a mediator facilitates resolution of the dispute. The mediator has no power to make a decision or force one on any party. The mediator works with the parties to reach a voluntary agreement of their own.
There are three commonly-used methods of resolving disputes without going to court:
· Negotiation
· Mediation
· Arbitration
2.1. Negotiation
If a person has a disagreement with another person, he often gets together to argue the problem and reach a mutual agreement. This way one can work out a solution that best meets one’s own desires and benefits. In some cases, you may also prefer to hire a lawyer, advocate or counselor who has the expertise to help one to negotiate or who can negotiate on your behalf.
One of the benefits of negotiation is that one can formulate the approach at any time. Different in other systems such as court events, where the other party has to agree to the process, the other side does not require to agree to take part before the first one (or previous one’s representative) approach them.
Most disagreements can be resolved through negotiation. A common example is settlement discussions between solicitors. More than nine out of ten legal claims are developed without requiring a trial.
2.2. Interest-Based Negotiations
Interest-based negotiating is a problem-solving process to collaborate on a solution, in the FEC compliance context, that is specific and appropriate for both the FEC and for the respondent in an administrative complaint or referral.
2.3. Difference between Interest-Based Negotiations in the ADR Program and Traditional Negotiations
Interest-based negotiations with the FEC’s ADR Office engage direct negotiations between the respondent (and the respondent’s representative) and ADR Specialist in which the parties work together to find a result. Positional negotiations, aka traditional negotiations, focus on a position in spite of the actual welfare of the applicants.
2.4. Mediation
A mediator is an impartial and neutral person who can assist you in your negotiations. The purpose of mediation is not to determine who is right and wrong but to find solutions that satisfy everyone.<href=”#_ftn2″ name=”_ftnref2″ title=””>[2] The solutions can be more innovative than a court could offer. Involvement in mediation may or may not be voluntary. For example, in certain cases you must be referred to mediation before a trial can be scheduled. Either way, the mediator cannot control you to resolve the dispute or to accept a particular solution.
A mediator may contact you and the other party to talk about the problem and notice if there is a way of determining it without presence a mediation meeting. At mediation meeting people often symbolize themselves but they also can ask an advisor, friend or family member for help and support. An external advisor is often useful in taking another viewpoint.
Employers and employees can agree on any matters which meet both their benefit, only if they are within the law.
When an agreement is made the mediator will trace the judgment to be signed by all parties. The mediator will generally record when and how any agreements – such as reinstatement of an employee, payment of a settlement or a formal apology – are to take place. Once signed, the agreement becomes a full and final settlement and cannot be reopened by either party.A settlement should reproduce the consequence of the unclear event on the parties and will not necessarily engage money.
Time to use mediation
Mediation can be attempted at any stage of a dispute and the courts are likely to permit adjournments to litigation if there is a chance that mediation could resolve the dispute. If the mediation fails, the parties are free to proceed with litigation without prejudice to their legal rights.
2.5. Arbitration:
If you have an argument that you cannot determine yourself, you can agree to refer the matter to arbitration. Arbitrators are often people who are experts in a specific area of the law or a particular industry. At an arbitration investigation, you may have an agent speak for you or you can speak for yourself.
The arbitrator makes a judgment based on the facts, any contract between the people and the appropriate laws. He or she will clarify how the conclusion was reached. If the applicable law allows, you can decide yourself in advance whether the arbitrator’s decision will be final and binding or whether it should be subject to review by a court if a party disagrees with the decision.
Sample – Cell Phone User Agreement:
You and Phone Company both agree to resolution disputes only by arbitration or in small claims court. There’s no judge or jury in arbitration, and the events may be different, but an arbitrator can reward the same damages and release, and must honor the same terms in this agreement, as a court would. Also, if for any reason a claim taking in court rather than through arbitration, you and Phone Company agree that there will not be a jury trial.
3. Neutral Selection
The segment of a neutral is an important decision. Currently there is no legal obligation that the neutral be approved or hold any particular certificate. However, some programs and the court have established prerequisite requirements for neutrals.
There are some trained neutrals are available to assist parties on fee-for-service. These individuals have met the necessities to participate on the court’s section and offer dispute resolution services. Panelists are not Court employees; therefore service, style and expertise will vary by individual provider.
4. When should you consider ADR?
As time goes by, it may become harder to agree on a solution that satisfies everyone. Each side will become convinced they are “right” and the other side is “wrong”.Through ADR methods early can save both the time and money concerned in taking a argument to court. It is essential to take as sooner decision as possible because it will be better than going to the court.
5. When should the courts to decision?
There are times when ADR is not an alternative and the dispute should be absent to the courts to decide. For example:
· If violence or the danger of violence, of any kind, is concerned.
· If there is a great power inequity between the parties ( for example, a conflict between an employer and worker )
· If one of the parties desires the issue to be known to the public (most ADR processes are private).
· If the result of the case could influence a great number of people.
· If a specific and largely appropriate solution is mandatory.
6. Use ADR during the informal (pre- complaint) stage
ADR can be used during informal stage unless the agency has resolute that a particular case is unsuitable for ADR. When ADR is chosen as the method of decision, the traditional counseling process will end and the criticism will be referred to Mediation and Work life Service Division (MWSD) for assignment of a mediator. In all cases, the EEO counselor will behavior the initial therapy session, recognize claims and fully notify the individual of their human rights, to include the option to return traditional analysis of ADR. Counselors must inform individuals that if the ADR process is not successful, the complaint will be referred back to the EEO counselor. The counselor will then conduct a final interview with the aggrieved within 90 days of the initial contact with the office of civil rights and provide the aggrieved a notice of right to file a formal complaint.
7. Use ADR during the formal complaint stage
ADR can be used during the formal complaint stage, unless the agency has determined that an exacting case is unsuitable for ADR, it is available at all stages of the formal EEO process. Management and disputants are confident to prolong attempts to decide disputes during the criticism process, whether through ADR or any other means of informal conclusion.
8. Work process of ADR
The process usually starts with a combined session. During the first meeting, the mediator clarifies the procedure and how it works and answers any questions. After each party presents his or her side of the story, the mediator may meet with each party separately, in what is known as a caucus, to discuss the issues in greater detail and to gain a better sense of how the parties would prefer to see the issue resolved.
The mediation process may then persists with a series of separate meetings or continue in a joint meeting with the parties. During with these meetings, the mediator will discover with the parties various alternatives for resolving the argument. The mediator can act in any number of roles; i.e., communicator, translator, agent of reality etc. the aim of mediation is to attain a jointly agreeable resolution.
9. Reasons to use ADR
The whole procedure is confidential. As such, the mediator will not eagerly be an observer in a court of law or a managerial process. No written evidence will be completed of the mediation process. However, if a declaration to the complaint is attained during mediation, the terms of the conformity will be reduced to writing.
Secondly, mediation is fast and can result in a win-win condition for all parties. An EEO mediation conclusion takes much less time to achieve than the more timely, sometimes bitter and costly process of proceedings.
Finally, the disputant does not give up any rights to follow the matter officially. Mediation is planned to be an informal settlement process and it is entirely intentional. Either of the parties or the mediator can end the conference at any time.
10. Is ADR right for anyone?
To support in deciding whether or not mediation is a proper ADR process for your dispute, you should consider the following:
- Does the conflict engage an ongoing working relationship?
- Do the parties want the matter developed confidentially and informally?
- Do the parties want to have a voice in determining an agreement?
11. Who should be present during the ADR?
Parties can represent themselves or have a representative convoy them to the meeting. Management’s representative must have firsthand knowledge of the situation and authority to enter into a resolution agreement with the disputant.
12. ADR agreements
Agreements reached through ADR are normally printed and can become compulsory agreements that can be imposed by the court if the parties agree. Parties may decide to seek the advice of a legal representative as to your legal rights and other matters relating to dispute before finalizing any agreement.
12.1. ADR process selection & information
There are several other types of ADR. Some of these include conciliation, resolution discussion, fact finding, mini-trail, victim offender conferencing and summary jury trial. Sometimes parties will try a combination of ADR types. The important thing is to find the type of ADR that is most likely to resolve the dispute. Contact the ADR department staff for assisting for additional information and transfer the services properly for each specific case.
13. Dispute Resolution Program
Through Dispute Resolution Program Act (DRPA) funding, free or low cost mediation services is provided.
13.1. Operation of DRS
The DRS functions through a board of solicitors and barristers who are trained and attributed to perform as mediators on behalf of the parties to disputes.
13.2. Effectiveness of DRS
Research demonstrates that alternative to mediation has a high success rate; it is quicker and can save legal costs and it can result in defending the business relationships between the parties for the future.
13.3. Use of the Dispute Resolution Service (DRS)
DRS try to resolve a dispute by taking the following steps:
- Contact the other party to see whether or not they will concur in principle to try mediation.
- If the parties agree in principle to attempt mediation, print out the registration form which is accessible from the downloadable papers below, complete it and onward it to the Society. The registration fee is 144 (Inclusive of VAT) and it should be separated equally between the parties.
- On receiving of the registration form and the fee the Society will contact each party to recommend the name of a mediator suitable to both sides. The purpose of this is to guarantee that each party is satisfied with the choice of mediator. When the choice of mediator has been approved, the Society will write to the mediator to make the formal meeting and afterward the mediator will take over and place directly with the parties the time, position and circumstances of the mediation and for the mediation conformity to be signed by them.
- It is not essential to copy documents to the Society giving details about the dispute. A short note about the problem in the registration form will be sufficient. The value of the claim should be stated.
13.4. Approximate Cost of DRS
A. Registration Fee: The fee to register the dispute with the DRS is £141 (Inclusive of VAT).
B. Mediation Fee: The mediator will charge a professional fee to the parties for providing mediation services. The mediator will offer the parties details of the professional fee before the mediation begins.
The mediator’s fees are based on the monetary value of the dispute and on the amount of work carried out by the mediator. Although some training by the mediator will normally be required, most of the work takes place on the day of the mediation. It is a matter for the mediator to decide the professional fees to be charged to the parties for mediation. These may comprise the cost of booking a venue for the mediation, plus traveling and food.
14. Advantage& Disadvantages of ADR
Advantages
· Often faster than going to trail, a dispute may be determined in a matter of days or weeks instead of months or years.
· Often less expensive, saving the litigants court costs, attorney’s fees and expert fees.
· Lets more contribution and empowerment, allowing the parties the chance to inform their side of the story and have more control over the outcome.
· Permits for flexibility in alternative of ADR processes and resolution of the dispute.
- Promotes assistance by permitting the parties to work jointly with the impartial to determine the dispute and mutually concur to a remedy.
- Often less stressful than litigation. Most people have accounted for a high degree of approval with ADR.
Because of these advantages, many parties prefer ADR to resolution disputes instead of filling a court case. Even after a lawsuit has been filed, the court can submit the argument to a neutral before the lawsuit becomes costly. ADR has been used to resolve disputes even after trial, when the consequence is requested.
Disadvantages
· ADR may not be appropriate for every dispute.
- If the ADR process is required, the parties normally give up most court defenses, including a conclusion by a judge or jury under formal rules of confirmation and process, and appraisal for legal mistake by an appellate court.
- ADR may not be efficient if it takes place before the parties have adequate information to determine the dispute.
- The impartial may charge a fee for his or her services. If the dispute is not resolved through ADR, the parties may then have to face the usual and traditional costs, such as attorney’s fees and expert fees.
- Lawsuits must be transported within particular periods of time, known as act of Limitations. Parties must be cautious not to let a Statute of Limitation run as a dispute is in an ADR process.
15. Conclusion:
Altogether, the methods for alternative dispute resolutions are well-organized when dealing with civil disputes. Negotiation is the starting blocks of ADR and is very simplest method of solving disputes. Nearly, all methods are permitted to use of affair third party to help people with their arguments. This has shown to be efficient in the way that they deal with cases as they are intended to deal with them as quickly and reasonably as possible. However, many may agree mediation is one of the best ways of solving a dispute. It deals with a range of cases and has skill in all areas; the use of mediation is a big bonus as it permits parties to a third months and there is offered help on ways to settle cases. Court should be used as a last option if all other ADR’s fail to work and legal aid should be accessible to those who are at a shortcoming to the other party and are in need of help.
Reference:
1. Federal Election Commission, Alternative dispute resolution program, available from:- http://www.fec.gov/em/adr.shtml
2. the law society of Northern Ireland ,Alternative dispute resolution (ADR), available from:-http://www.lawsoc-ni.org/role-of-the-law-society/resolving-disputes/
3. FSIS, Civil rights programs available from: http://www.fsis.usda.gov/About_FSIS/Civil_Rights_ADR/index.asp,
4. Guidebooks for representation in supreme court civil matters, alternatives to going to courts, available from:- http://www.supremecourtbc.ca/sites/default/files/web/Alternatives-to-Going-to-Court.pdf
5. HG.Organization, Global legal resources, available from:- http://www.hg.org/adr.html
6. Methods of dispute resolution: Negotiation, available from:-http://www.netlawman.co.uk/info/negotiation.php
7. Ministry of business, innovation & employment available from:-
http://www.dol.govt.nz/er/solvingproblems/resolving/mediation.asp,
8. Supreme Court of California, country of Fresno, available from:-http://www.fresno.courts.ca.gov/alternative_dispute_resolution/
9. Department of justice, what is alternative dispute resolution? available from:-http://settlement.org/sys/faqs_detail.asp?faq_id=4000353,
See HG.Organization,”Global legal resources” available from:- http://www.hg.org/adr.html [Accessed 19,July 2012]
This article contains information from Department of justice, “What is alternative dispute resolution?” available from:-http://settlement.org/sys/faqs_detail.asp?faq_id=4000353 [Accessed 21,July 2012]
Taken from Ministry of business, innovation & employment, available from:-
http://www.dol.govt.nz/er/solvingproblems/resolving/mediation.asp [Accessed 20,July 2012]
This article contains information from Department of justice, “What is alternative dispute resolution?” available from:-http://settlement.org/sys/faqs_detail.asp?faq_id=4000353 [Accessed 21,July 2012]