Alternative Dispute resolution (ADR) methods, in comparison with court litigation, have various advantages though it is not free from different short comings. Explain.

Introduction:

The expression alternative dispute resolution or ADR tries to cover a range of activities other than litigation, law suits or court cases which are designed to resolve any sort of conflict and disagreement. This ADR process includes different things like negotiation, mediation, conciliation, expert determination, adjudication, and arbitration. In this last few decades the use of ADR has become more customary, established and it became wide spread in both international and domestic commercial contracts. It also became a customary thing because the costs of litigation or lawsuits has become expensive and parties to a dispute and their advisers are now considering and trying to come up with alternative methods which can resolve this disputes at a cheaper and quicker way and ensuring that it will not lead to a break down in the working relationships of both parties.

 Definition of ADR and it’s processes:

Any method of resolving disputes other than by litigation or lawsuits are abbreviated as ADR.  Public courts may ask to evaluate the validity or legality of ADR methods, but they will hardly ever overturn the ADR decisions and awards if the disputing parties produce a valid agreement to abide by them.  Arbitration and mediation are the two major forms of ADR.[1] It also includes dispute declaration processes and techniques which act as a mean for disagreeing parties to come to an agreement short of litigation, legal actions or lawsuits. ADR basically is an option to a formal court hearing or litigation. It is also a collective or united term for the ways that parties can resolve disputes, with (or without) the help of a third party. It means using different ways and methods to resolve any disputes outside the judicial process (formal litigation – court). [2]

The word alternative dispute resolution or ADR is frequently used to explain a broad and wide variety of dispute resolution mechanisms that are short of, or substitute to, full-scale court processes. The term is refer to everything from facilitated arrangement negotiations in which parties are encouraged to negotiate directly with each other prior to some other legal process or arbitration systems or mini trials which look’s and feel’s very much like a courtroom process. This sort of activities or Processes is designed to manage community pressure or facilitate community development aspects which can also be included within the subject of ADR. This ADR system is generally divided as negotiation, conciliation/mediation, or arbitration systems.

If we explain the Negotiation system we can find that it creates a formation to encourage, promote, assist and facilitate direct negotiation between parties to a dispute, without the interference or involvement of the third party. Mediation and conciliation systems are also very similar in which they interject a third party between the disputants, either to help that specific dispute or to reconcile their relationship. People who are helping others by doing Meditation and conciliation are simplifying the communication process. They can help directly and form a structure of settlement, but this people do not have the power, right or authority to decide judgment of a settlement nor rule on a settlement. The Arbitration systems give permission to the  third party to decide how the disagreement can be resolved.

It is very much essential to differentiate among necessary and un necessary forms of ADR. Negotiation, mediation, and conciliation programs are always non-binding forms and it depend on the keenness of the parties to reach a voluntary and controlled agreement. Arbitration programs are either binding or non-binding forms. The form of binding arbitration creates a third party decision which the disputants must have to follow even though they disagree with its result. It is more like a judicial decision. The process of non-binding arbitration creates a third party decision which the other parties may reject. It is always important to know the different comparison between mandatory processes and voluntary processes. Some judicial or legal system requires litigant or the accuser to negotiate, conciliate, mediate, or arbitrate which is prior to the court action.[3]  The ADR processes can also be a part of a contract base agreement between parties. All sorts of voluntary processes and compliance of a dispute to an ADR process also depends completely on the will of the parties.

 Benefits of ADR:

ADR has been used a lot and it is incorporated formally. ADR is created into an internationally legal system so that it can capitalize on the typical advantages of ADR over litigation:

  • Appropriateness and suitability for more than one party disputes.
  • Flexibility of process, this method is determined and controlled by the parties for the dispute.
  •  It is much cheaper.
  • Less difficulty.
  • Party’s choice of unbiased third party and therefore knowledge in area of dispute to direct negotiations/adjudicate.
  • Likelihood and gives a speed for any particular settlement.
  • Practical solutions are personalized for party’s interests and needs.
  • The strength and durability of an agreement.
  • Confidentiality, private or secrecy.
  • It makes sure about the protection of relationships and the protection of reputations.

 Limitations of ADR:

The ADR programs can play a very important role in many cases but in some cases they are unsuccessful and perhaps even counterproductive while serving different goals which relates to the rule of law initiatives. ADR does not have an effect to:

  • Describe, refine, create, support and promote a legal structure.
  • Restore insidious injustice, discrimination, inequality and human rights problems.
  • Resolving different disputes between parties who have different levels of power, control or authority.
  • Resolving different cases which require public sanction or approval.
  • Resolve disputes, which involves disputants or interested parties who refuses to attend participate, or cannot participate in the ADR process.

 a) ADR program does not set any legal norms or establishes national standards and does not promote any application of legal rules:

ADR programs are the gear of fair play. It is not the tools of law. It seeks to give a resolution about individual disputes on a case or by case basis. It can also resolve and can give a proper solution to related cases in many ways if the surrounding circumstance recommends that different results are fair and reasonable according to local norms. Moreover, ADR results are private, classified and it rarely publishes. As long as some other legal system exists to define, give codes, and protect the reasonable principles of justice, ADR programs can work well to determine relatively minor, practice, and local disputes for which impartiality becomes the largest measure of justice and integrity, and for which the local and the cultural norms may be more suitable than the national legal standards. These types of disputes can be family disputes, neighbor disputes, and small claims among others. In disputes where there is no clear legal or normative standard has been established, ADR may not be able to overcome or rise over the power imbalances or fundamental disagreements over norms among disputants. On the other hand, in situations where there is no established or well known legal process for dispute resolution, ADR may become the best possible option to violence. For example, in South Africa, a variety of ADR processes used before and during the transition appear to have prevented violence to some degree and helped set the foundation for peaceful political change.[4]

 b) ADR programs are not able to correct the universal and systemic injustice, discrimination, inequality and violations of human rights:

If we look at the previous portion of the data than we can find out that ADR system often reflect the established norms of a society. These norms may comprise of discrimination against certain groups of people and countries populations. It is true that ADR systems may hold back the necessary efforts to change the discriminatory norms and it will establish new standards of group or individual rights. In India, for example, we have seen that the public court house were generally credited for resolving a large numbers of cases efficiently, professionally and cheaply in the mid-1980s, before the whole system was taken over by the government judiciary, judges and courts. Women in that country did not like the system especially for handling different family disputes. It happened because resolution of disputes was based on local norms, which were always discriminatory towards women that time, rather than on more recently defined legal rights. The same thing was implied for members of different lower castes.[5]

 c) ADR programs never works well in part of extreme power imbalance among parties:

These power imbalances has often been resulted and found in the discriminatory norms in society, and it reflected in ADR program results. Even when this imbalance does not become a sign of discriminatory social norms, most of the ADR systems does not include any sort of legal, practical, technical or procedural protections for the lower castes or the weaker parties. A more powerful or wealthy party may make the weaker party to accept an unfair result. When that happens the settlement appears to be consensual, but in fact the result is a form of force. Because of those reasons, ADR programs might not work well when one party is the government. When the program design has been able to enhance the power or status of the weaker party, ADR has been effective in conditions of discrimination or power imbalance. In Bangladesh, for example, women who have submitted cases of spousal abuse to mediation have found that the village mediation system, which includes women mediators, provides better results than the court system which is even more biased against women in these cases. In general, however, ADR programs cannot replace or substitute for stronger formal protections of group and class rights. [6]

 d) ADR settlements do include any educational, disciplinary, or deterrent effect on the population:

Since the results of ADR programs are not public, ADR programs are not appropriate for cases which ought to result in some form of public sanction or punishment. This is particularly true for cases involving violent and repeat offenders, such as in many cases of domestic violence. Societies interest and individual interests may be better served by court sanctioned punishment, such as imprisonment. It is important to note, that the victim criminal mediation or conciliation may be useful in some cases to deal with issues which are unresolved by criminal process.

 e) It is wrong to use ADR to resolve multi-party cases in which some of the parties or their stakeholders do not participate:

the quotation above is true because the many of the results of ADR programs are not subject to standards of fairness other than the acceptance of all the participants. When this happens, the

absent stakeholders often bear an unfair burden when the participants shift responsibility. ADR is more able than courts to include all interested stakeholders in disputes involving issues that affect many groups, such as environmental disputes. When all interested parties cannot be brought into the process, however, ADR may not be wise or appropriate for multi-stakeholder public or private disputes.

 f) ADR may weaken other judicial reform efforts:

There is a concern that support for ADR may draw off money from needed court reforms, draw management and political attention from court reform efforts, or treat the symptoms rather than the underlying causes of problems. While these concerns are valid, they will rarely appear if ADR programs are not designed to substitute for legal reform. In most cases, ADR programs will be far less expensive to start and operate than broad-scale judicial reform efforts. In Ukraine, for example, the USAID mission considers the mediation program to be very inexpensive compared with other rule of law programs.[7]  And, in Sri Lanka, the Mediation Boards resolve cases at a fraction of the cost the government would incur through the ordinary court system. In general, ADR programs reduce costs for the state, and therefore for donors, at least as much as they reduce costs for disputants.[8]  In sum, ADR programs do not necessarily draw attention away from problems that can only be addressed through formal justice processes, as long as both development officers and government officials keep in mind the limitations of ADR programs.

 Conclusion:

The ADR system is much more effective in many cases but it doesn’t provide or gives us a fair result always. It becomes unfair because of the ruling of powerful people over the lower caste people. So the system needs to have a change. Because a person who is not guilty always wants a fair trial whether the other party is powerful or not. This thing is happening all around the world. If this happens for a long time than people will lose their absolute faith in court an justice. So the governments need to resolve this issue as quickly as possible.

 Recommendation:

  • Fair trial system for all the parties
  • No injustice
  • Resolve the issue in a fairly manner
  • No discrimination
  • Allow jury system so that the trial can be well judged.

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[1] http://www.law.cornell.edu/wex/alternative_dispute_resolution

 

[2] http://en.wikipedia.org/wiki/Alternative_dispute_resolution

[3] http://en.wikipedia.org/wiki/Alternative_dispute_resolution

[4] http://en.wikipedia.org/wiki/Alternative_dispute_resolution

[5] http://en.wikipedia.org/wiki/Alternative_dispute_resolution

[6] http://www.peacemakers.ca/research/Bangladesh/BangladeshPeaceLinks.html

[7] http://www.ili.org/centers-of-expertise/alternative-dispute-resolution.html

[8] http://www.justiceministry.gov.lk/ALTERNATIVE%20DISPUTE%20RESOLUTION.htm