Application of ADR in International Disputes is enormous: Explain the application of ADR in International disputes.
1. 1. INTRODUCTION;
Alternative Dispute Resolution (ADR, sometimes also called “Appropriate Dispute Resolution”) is a general term, used to define a set of approaches and techniques aimed at resolving disputes in a non-confrontational way. Alternative Dispute Resolution (“ADR”) processes are alternative methods of helping people resolve legal problems before going to court. ADR involves an independent third person, called a “neutral” who tries to help resolve or narrow the areas of conflict[1]. The use of ADR early in a case can result in the more efficient, cost-effective resolution of disputes with greater satisfaction to the parties. It covers a broad spectrum of approaches, from party-to-party engagement in negotiations as the most direct way to reach a mutually accepted resolution, to arbitration[2] and adjudication at the other end, where an external party imposes a solution Somewhere along the axis of ADR approaches between these two extremes lies “mediation[3],” a process by which a third party aids the disputants to reach a mutually agreed solution.
Increasingly, the international business community is using arbitration to resolve commercial disputes arising in the global marketplace. Supportive laws are in place in many countries that provide a favorable climate for the enforcement of arbitration clauses. International commercial arbitration awards are recognized by national courts in most parts of the world.
Many of the world’s leading international companies select arbitration rather than court proceedings to resolve commercial disputes. In the ADR Blueprint Discussion Paper released in April 2009, the ADR Directorate recommended the introduction of new commercial arbitration laws and the establishment of an international arbitration center in Australia. The aim of these recommendations is to establish Sydney as a center for international commercial arbitration. NSWs new commercial arbitration legislation, which is based on the United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration, was passed on 22 June 2010. The Australian International Disputes Centre was established in 2010 with the assistance of the NSW and Commonwealth Governments.
2. ORGANIZATIONS RELATED TO ALTERNATIVE DISPUTE RESOLUTION REGARDING INTERNATIONAL DISPUTES:
Whenever two or more parties have a dispute, it would be preferable if they were able to discuss it between themselves and to arrive at a peaceful solution. That is true whether the parties are members of a family, States or commercial entities. Only the parties themselves can achieve a solution that will not only resolve the dispute, but will facilitate a useful future relationship. However, sometimes the parties are not interested in any future relationship and only want the dispute to be settled, preferably on their own terms. That may lead to war or its private equivalents. Even when they are interested in a peaceful settlement of the dispute, it is not infrequent that the parties are not able to discuss – or negotiate – a mutually agreeable solution. In such a situation the aid of a third party must be sought[4].
There are two basic methods of defining an international arbitration for the above-mentioned purposes. One is to consider the transaction; does it involve a transaction that is either in a State other than the place of arbitration or that takes place in two or more States. The other method is to consider the parties; do they come from different States.
Particular important international ADR authorities and institutions are described below which are specialize in settling international disputes.
I. Association for International Arbitration (AIA)
The Association for International Arbitration (AIA) works towards promotion of alternative dispute resolution (ADR) in general and arbitration in particular, as a means of dispute resolution and strives to bring together the global community in this field, be it as professionals in the form of judges, lawyers, arbitrators, mediators or as academics as well research scholars and students[5]. With this unique blend of people, it is our endeavor to inculcate an interest in ADR, not only in the professional sphere but also create awareness and interest in it among budding professionals in law schools/universities all around the globe.
II. North American Free Trade Area (NAFTA) – Dispute Settlement Procedures
The North American Free Trade Area, comprising Canada, Mexico and the United States, was established in 1992 by the North American Free Trade Agreement (NAFTA). Like several other regional economic integration agreements, such as the European Communities, the EFTA, the Andean Community or the Mercosur, the objective of NAFTA is to remove trade barriers, create a common market, and promote economic cooperation between participating states[6]. However, unlike most similar agreements, NAFTA falls significantly short of creating an integrated legal system, much less a structured dispute settlement system.
III. International Alternative Dispute Resolution – World Bank
International alternative dispute resolution (ADR) is the process of settling transnational disputes through the use of dispute resolution mechanisms other than courts. Due to the time, expense and complications involved in resolving and enforcing disputes between transnational parties in courts, international ADR is sought because it can be a confidential, speedy and predictable process and the parties might have more trust in the enforceability of these settlements.
IV. International Chamber of Commerce (ICC) – Commission on Arbitration
The Commission on Arbitration aims to create a forum for experts to pool ideas and impact new policy on practical issues relating to international settlement, the settlement of international business disputes and the legal and procedural aspects of arbitration. The Commission also aims to examine ICC dispute settlement services in view of current developments, including new technologies[7].
V. International Court of Environmental Arbitration and Conciliation
The International Court of Environmental Arbitration and Conciliation (“the Court”) was established in Mexico D.F. on November 1994, by 28 lawyers from 22 different countries, as a form of Institutionalized Arbitration. The Court facilitates through conciliation and arbitration the settlement of environmental disputes submitted by States, natural or legal persons (“Parties”).[8]
VI. International Centre for Settlement of Investment Disputes (ICSID)
The International Centre for Settlement of Investment Disputes (ICSID) is an autonomous international organization, which has close links with and was created by the World Bank in 1966. ICSID facilitates the arbitration of disputes between member countries and foreign investors who are nationals of other member countries. Parties may voluntarily resort to ICSID arbitrations; however, once they have consented to ICSID arbitration, the parties cannot withdraw their consent.
VII. International Chamber of Commerce (ICC)
The International Chamber of Commerce (ICC) is an international organization that, amongst other things, targets international business disputes by providing international arbitration and other forms of dispute resolution. ICC arbitrations offer transnational parties the choice and place of arbitration and its own rules of arbitration, including model clauses that can be used in business contracts.[9]
1. 3. APPLICATION OF ADR IN INTERNATIONAL DISPUTES:
In past decades, only diplomats conducted international negotiation and agreements between countries. Negotiating today is not restricted to the diplomatic corps; it involves professional people, experts, non-governmental organizations, local interested groups, local authorities, and international entities, all of which have an impact on the process. Cultural issues play a major part in international negotiation, and have a significant impact on it. A strong personal relationship and trust between the negotiators can be a positive force in future agreements. Issues such as personal relations, time, sovereignty, face-saving, mode of bargaining, and hierarchy, which are culturally based, need to be considered during negotiations between different nations, societies, and ethnic groups. Today it is realized that conflicts and the issues involved are very complex, the outcomes are far reaching, and can often affect other nations,
a region, or the world. The international negotiation process is more complex, because of the various interdependencies between countries, cultural issues, and past history, and the fact that individual people or a group of people negotiate on behalf of a collective. Their culture, psychology, emotional state, behavior, ethics, values, and private agendas may affect the outcome of the negotiation. In the past decades the world has become one global village. Distances are smaller, communication means are easier and faster, and the economy has become a major factor in international relations. A conflict between two or more countries may affect a whole region.
Some conflicts may not be resolved easily, and can last many years. Sometimes these conflicts persist in spite of the fact that they cause heavy losses of resources, and even human life. According to a study at Stanford University (Arrow et al., 1995) there are three categories of barriers to resolving conflicts:
a) Tactical and strategic barriers; these stem from the parties’ efforts to maximize short or long term gains.[10]
b) Psychological barriers; these stem from differences in social identity, needs, fear, interpretation, values, and perceptions of one another.[11]
c) Organizational, institutional and structural barriers; these can disrupt the transfer of information, and prevent leaders from reaching decisions that are in the interests of the parties in dispute.[12]
A dispute between Israel and Egypt over the location of the border between the two countries in the Gulf of the Red Sea was settled in favor of Egypt by an international arbitration panel, on September 29 1988. Israel had to return the town of Taba, a resort town near Eilat, to Egypt as a result of the arbitration. Again, the conflict in Yugoslavia had an adverse effect economically on the shipping and transport industry on the Danube, with very heavy financial loses for countries such as Hungary, Ukraine, Germany, Romania, and Austria, which were not connected with the conflict in Yugoslavia (Egglestone, 1999). The Israeli-Palestinian conflict affects the whole region, especially the economy and political situation of Israel and the Palestinian Authority, but also neighboring countries such as Egypt and Jordan that are negatively affected. Bangladesh, which formed a coalition with India who helped in gaining its independence from Pakistan, is threatening to cancel the Treaty of Friendship with India
Because of the issues of reduced quantities of water and increased salinity in the water, this endangers the existence of millions in Bangladesh.
An increasing number of states are experiencing occasional or lasting water stress, yet in most cases mechanisms and institutions to manage disputes over water resources are either absent or inadequate[13]. Competition over this precious resource could increasingly become a source of tension – and even conflict – between states and sectors. History has often shown that the need for freshwater can cause different users to cooperate, rather than allow confrontations that could jeopardize the water supplies. Water Conflicts can be resolved in various ways:
• Force: a decision imposed by force on one or more of the parties.[14]
• Adjudication: a decision rendered by an authority, state, institution, Court of Law, or Special Master. Some states assign a “Special Master” who will act as a judge or arbitrator in water disputes.
• Negotiation: a decision requiring an agreement among the parties.
The tendency for resolution in the world today is to use interest-based negotiation and mediation, equitable and reasonable use of water, and reach an agreement where the parties will jointly manage the shared water resources.
In the Zambezi River dispute, where eleven countries are involved, they reached an agreement to manage and develop the Zambezi resources jointly. The Vatican played the mediator/facilitator and used its authority to influence the parties and promote an agreement (Milich and Varady, 1998).
The public dispute over water issues in Hawaii was a long and escalating controversy that entailed issues such as protection and control of surface and groundwater, water ownership, and issues of water quality that even the lawmakers could not resolve. Councilwoman Jo Ann Yukimura decided to mediate the dispute, all parties reached a resolution by consensus, and the result was a 75-page code proposal, and a state water agency managing a system of water use permits (Glaser, 1998).
4. CONCLUSION:
This underlying philosophy creates a challenge (for water resources managers, governments, local and international NGOs, and national and international institutions) to seek ways of avoiding conflicts if possible, and resolving them amicably and effectively when they do arise. In order to accomplish this, there is a need to raise the capacity of these organizations so that they can better prepare for, and respond to, challenges that arise because of constantly changing circumstances. This capacity is especially critical in areas where there is potential conflict brewing.
If there is goodwill, a desire to avoid confrontation and dispute, and an understanding that all parties can benefit from a strategy of using alternative dispute resolution approaches, there is a real opportunity to reduce the damage caused by conflicts and move from potential conflict to potential cooperation.
BIBLIOGRAPHY
1. Acland, A. F. 1990. Managing Conflict through Mediation. London, Hutchinson Business.
1. 1995. Resolving Disputes without Going to Court: A Consumer Guide to Alternative Dispute Resolution. London, Random House. Aitken, R.; Brand, M.; Allooloo, T.; McCready, K.; and Grant, J. 1993. Building Consensus for A Sustainable Future: Guiding Principles. Canada, Round tables on Environment.
1. Arrow, K.; Mnookin, R. H.; Ross, L.; Tversky, A.; and Wilson, R. 1995. Barriers To Conflict Resolution. London, W. W. Norton.
2. Bazerman, M. 1983. Negotiator Judgment: A Critical Look at the Rationality Assumption. American Behavioral Scientist, Vol. 27, No. 2.
1. 1986. Why Negotiations Go Wrong. Psychology Today, March
1. Bazerman, M. and Neale, M. 1993. Negotiating Rationally. New York, Free Press.
1. Bercovitch, J. 1984. Problems and Approaches in The Study of Bargaining and Negotiation. Political Science. Boulder, Colo.
1. 1984. Social Conflict and Third Parties. Westview Press.
1. Bercovitch, J. and Rubin, J. 1992. Mediation in International Relations. London, Macmillan.
1. Berton, P.; Hiroshi, K.; and Zartman, B. 1999. Justice, Fairness, and Negotiation: Theory and Reality. New York, St. Martin’s.
1. Berton, P.; Kimura, H.; and Zartman, W. 1999. International Negotiation, Actors, Structure/Process, Values. New York, St. Martin’s.
1. Eggleston, R. 1999. Yugoslavia: Danube River Trade Hurt by Conflict.
http://www.rferl.org.www.rferl.org.
1. Global Chaos: Sources of and Responses to International Conflict, Washington, D.C., United States Institute of Peace
1. Hamer, J. and Wolf, A. 1997. Patterns in International Water Resources Treaties: The Transboundary Freshwater Dispute Database. Colorado Journal of International Environmental Law and Policy 1997 Yearbook.
1. Hampson, F. and Hart, M. 1995. Multilateral Negotiations: Lessons From Arms Control, Trade, and the Environment. Baltimore, Md., Johns Hopkins University Press.
1. Hampson, F. and Reppy, J. 1996. Earthly Goods: Environmental Change and Social Justice. New York, Cornell University Press.
1. Hoffman, D. 1997. Tools of the Trade: A Manual for the Settlement-Oriented Mediator. Harvard Law Review, Spring.
1. Hopmann, P. 1995. Two Paradigms of Negotiation Bargaining and Problem-Solving. The Annals of the American Academy of Political and Social Science, November.
1. Hunter, J. 1998. Tuman River Area Development Program and Transboundary Water Pollution. http:// www.nautilus.org/papers/enviro/hunter_tumen.html1998
1. Hofstede, G. 1980. Culture’s Consequences. Sage.
1. Jabbour, E. 1993. Sulha: Palestinian Traditional Peacemaking Process. Montreal, House of Hope.
1. Klhon, W. and Andjelic, M. n.d. Lake Victoria: A Case in International Cooperation. http://www.fao.org/ag/AGL/AGLW/webpub/lakevic/LAKEVIC4.htm
1. Kramer, R. and Messick, D. 1991. Negotiation as a Social Process. Sage.
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[1] Report of the Secretary-General: Possible Features of a Model Law on International Commercial Arbitration, A/CN.9/207, paras. 29-30.
[2] This is a process wherein parties to the dispute agree to submit their dispute to a neutral party, who will decide their case. Arbitration is the closest form to adjudication. The parties agree on a third neutral party or a panel, to whom they will present their case.
[3] Mediation is a process that employs a neutral/impartial person or persons to facilitate negotiation between the parties to a dispute in an effort to reach a mutually accepted resolution. Mediation is a process close in its premises to negotiation.
[4] Issues such as personal relations, time, sovereignty, face-saving, mode of bargaining, and hierarchy, which are culturally based, need to be considered during negotiations between different nations, societies, and ethnic groups.
[5] All participants should be committed to implementing the agreement and creating a mechanism of effective monitoring to deal with problem that may arise in the near and distant future.
[6] In the process of negotiation between countries, or international entities, one nation often needs to build a coalition with others to achieve its goals. The parties to the coalition do not have necessarily the same interests, priorities, or values, but have some similar objectives.
[7] The desire to reach a resolution to the dispute is an important starting point, an attitude vital for the progression of a process so complex. It manifests the willingness of all the participants to make efforts towards reaching a resolution, even though the parties know that at a later stage there may arise the need for some compromise.
[8] An increasing number of states are experiencing occasional or lasting water stress, yet in most cases mechanisms and institutions to manage disputes over water resources are either absent or inadequate
[9]The ICC offers clients the opportunity to file cases under specific sets of rules, which allow clients to choose where a dispute will be arbitrated as well as provide a mechanism to select a skilled arbitrator or mediator with the appropriate language skills.
[10] It is very important that parties provide for ADR in their contracts before a dispute arises. If the parties do not include an arbitration or mediation clause in their contract, they will have little choice but to use the court system to resolve their dispute. After a dispute arises, it is usually very difficult to agree on ADR.
[11] The psychological attitude of individuals to negotiation, their personal perceptions, past experience, and expectations are manifested in rational or irrational decisions, which have an effect on the outcome of the negotiation.
[12] In some legal systems the courts will not come to the aid of a “foreign” arbitration by way of aiding in the procurement of evidence, granting interim orders of protection or the like.
[13] Many countries along its route use the river Rhine. Pollution of the river has been caused by the chemical industries of Germany, Switzerland, and France, and the shipping industry along the river.
[14] When upstream countries cause the pollution of a river and degrade the quality of the water reaching downstream riparians, water quality and pollution can cause conflicts between the users.
GOALS OF ADR
Humans have always had the affinity to solve their dissimilarities by combat and subsequently they have recognized the remunerations of settling matters peacefully by flipping a coin or some other way. This search for substitutes to ferocity gave birth to the dynasties of alternative dispute resolution (ADR). ADR is often thought of as a new way of resolving disputes. In fact, its roots run deep in human history, and they have long played a vital role in cultures across the globe.
ADR in Traditional Societies
Mediation in China
China, where the traditional view of disagreement resolution has its source in Confucian ethics, embraced mediation promptly. Confucius trained that natural harmony should not be disrupted, and combative proceedings were the opposite of harmony.[1] Since the Western Zhou Dynasty two thousand years ago, the post of mediator has been included in all governmental administrations.[2]
Today in China, it is assessed that there are 950,000 mediation committees with 6 million mediators in fact, there are more mediators per 100 citizens in China than lawyers per 100 people in the United States [3].Chinese mediators thus do more than try to settle a quarrel and move on: they also instruct the participants in how to have a better relationship for the long term.[4] It would be many years before Western consultants of ADR would draw level to these ideas.[5]
Ancient Greek Roots of Arbitration
Arbitration was not simply a matter of folklore to the early Greeks. As Athenian courts became packed, the city-state introduced the position of public arbitrator sometime about 400 B.C.[6] According to Aristotle, all men served this function during their sixtieth year, hearing all manner of civil cases in which the disputants did not feel the need to go before the more formal, and slow, court system. The decision to take a case before an arbitrator was intentional, but the choice of being an arbitrator was not. Unless he happened to be holding another office or roaming abroad, any qualified man selected to serve as an arbitrator was mandatory to do so; if he refused, he would lose his civil rights.
The events set up by the Greeks were surprisingly formal. The arbitrator for a given case was chosen by draw.[7] His first duty was to attempt to resolve the matter politely. [8]This failing, he would call witnesses and required the offer of evidence in writing. An appeal would be brought before the College of Arbitrators, which could state the matter to the traditional courts.[9]
Both Aristotle (384–322 B.C.) and Cicero (106–43 B.C.) commented constructively on arbitration in words that certainly could be used to describe modern arbitration. [10]They made clear that arbitration was a substitute to the law court. Aristotle said arbitration was introduced to “give equity its due weight, making possible a larger assessment of fairness” .[11]Cicero said a trial is “exact, clear-cut, and explicit, whereas arbitration is mild and moderate”. He added that a person going to court supposes to win or to lose ,a person going to arbitration presumes not to get everything but not to lose everything either.[12]
Other Early Uses of Arbitration
Other examples around the world include the following:
India
India used a system of arbitration, Panchayat, which began twenty-five hundred years ago. The arbitrator, called a Panch, was given such extraordinary position that his decisions were permanent.[13] All types of cases could be subject to arbitration, including criminal matters. This exercise of arbitration was so strong that it sustained even during the eight hundred years of Muslim rule in India.[14]
Ireland
Arbitration was also an article of the Old Irish Brehon Law system, a body of native law that was in Ireland from the Celtic settlement before Christ. In initial Irish law, a birthed, who had trained in law but had not been appointed by the king as the authorized judge, could work as an arbitrator.[15]
Spain
The Spanish king Alfonso the Wise fixed the use of adjudication and allowed lawyers to exercise with the publication of Siete Partides in 1263[16]. This arbitration was binding; however, the arbitrators maintained a spirit of reunion by attempting to make decisions harmonious with cultural customs.[17]
Korea
The early Yi Dynasty in Korea (1392–1910) is distinguished for its endurance and its thorough use of arbitration. Because of its isolation, the administration did not employ arbitration in international disputes, but it was broadly practiced in a variety of commercial and civil disputes between citizens.[18]
Bangladesh
In the traditional system, disputes were resolved within the village depending on the significance of the dispute; neighbouring villages were also sometimes involved. During the British period, in 1870, the Panchayat system was permitted to manage and rule the area for its group. This system was used to resolve negligible disputes within their area, and the major disputes were sent for legal procedures. In 1919, the Bengal Village Self Government Act was introduced and Union Courts were set up to resolve disputes locally. Later, the government established the Rin Shalishi Board to keep peasants free from the Mahazons and the moneylenders and also to avoid clashes. Later, the Family Court Ordinance of 1961 and the Village Court Act of 1976 were introduced and authority was vested on the Chairman of Union Parishad to try petty local case and small crimes committed in their area and take consensual decisions.[19] These were later strengthened in 1985 with additional power to cover women and children’s rights. The village court consists of chairman, members and representatives from concerned parties. Under the Village Court Act of 1976, the village court can try disputes over property valued not exceeding Tk. 5,000. The village court has also power to summon a person to stand as a witness and can impose a fine of up to Tk. 500 on contempt charges.[20]
However, this system has some disadvantages, such as the court decisions are sometimes biased and the members of the court may or may not have adequate knowledge and experience to conduct trial procedure.[21] The present Union Parishad has a mandate to settle disputes of the local people through Salish. Major cases are not settled locally. Political influences are very frequent and often biased in the Salish. Today, many NGOs are quite successfully involved in mediation between disputants. Still, many disputes are not mediated nor are local people acquainted with the ADR system.[22]
Present Day ADR
Alternative dispute resolution (ADR) is any type of procedure or combination of procedures voluntarily used to resolve issues in controversy.[23]
Parties who choose to use alternative dispute resolution to resolve their dispute can choose a method and a provider of their own selection, conditional on the foundation of the dispute. While ADR is not usually obligatory but sections providing for ADR in contracts are binding as long as they are exact. However the extra-judicial events are not themselves governed by decree except for a number of Ombudsman Schemes and arbitration schemes which have been established by Act of Parliament.
Process of ADR
Figure 1: Process of ADR[24]
Types and features
ADR is generally classified into at least four types: [25]
Negotiation
1. Mediation
2. Collaborative Law[26]
3. Arbitration
The relevant features of each type are as follows:
1. In negotiation, partaking is intentional and there is no third party who comforts the resolution process or imposes a resolution.
2. In mediation, there is a third party named as a mediator, who facilitates the resolution process and may even advocate a resolution, known as a “mediator’s proposal”, but does not try to force a resolution on the parties.
3. In collaborative law each party has a lawyer who simplifies the resolution process within specifically constricted terms. The parties come to an agreement with the help of the attorneys and mutually-agreed experts. No one tries to force a resolution on the parties. However, the process is a formal process that is a portion of the litigation and court system.[27]
4. In arbitration the participation of parties is voluntary, and there is also a third party who acts as a private evaluator to inflict a resolution. Arbitrations often occur because parties to contracts decide that any future fight concerning the agreement will be determined by arbitration. [28]
Beyond the elementary types of alternative dispute resolutions there are other different forms of ADR:
• Case evaluation: It is a non-binding process in which parties submit the facts and the issues to a impartial case evaluator who instructs the parties on the metiers and feebleness of their own positions, and judges how the dispute is possible to be decided by a jury or other adjudicator.
• Initial neutral evaluation: It is a technique that takes place soon after a case has been filed in court. The case is stated to an expert who is asked to provide a sensible and unbiased valuation of the disagreement. The evaluation of the expert can assist the parties in assessing their case and may guide them towards a settlement.
• Family group conference: It is a consultation between members of a family and members of their extended connected group. At this meeting or a series of meetings the family becomes tangled in knowledge skills for interaction and in making a plan to stop the mistreatment between its members.
• Neutral fact-finding: It is a course where a unbiased third party, designated either by the disputing parties or by the court, considers an issue and reports in court. The neutral exploratory process is mainly useful for deciding complex scientific and factual disputes.
• Ombuds: It is a third party who is selected by an organization for instance a university, hospital, corporation or government agency to deal with objections by employees, clients or constituents.
Benefits
ADR has been both; increasingly used together with, and combined formally, into legal systems internationally in order to capitalise on the typical advantages of ADR over litigation:[29]
• Appropriateness for multi-party disputes
• Elasticity of procedure – the process is determined and controlled by the parties engaged in dispute
• Lower costs
• Less complication
• Parties can choose neutral third party to direct negotiations[30]
• Possibility and speed of settlements
• Practical solutions custom-made to parties’ interests and needs
• Stability of agreements
• Confidentiality
• The protection of relationships and of reputations.
Goals of ADR
The goals of ADR may be defined as follows:[31]
1. To dismiss court congestion and to prevent unnecessary cost and delay
2. To grow community involvement in the dispute resolution process
3. To enable access to justice
4. To offer more effective dispute resolution
5. Minimizing the number and frequency of disputes
6. Saving costs on handling disputes [32]
7. Resolving disputes faster
8. Providing an outlet for disputants to discuss frustrations
9. Achieving results that are stable and enforceable
10. Maintaining good relationships with stakeholders
11. Avoiding protracted disputes by providing a framework to deal with future disputes as they arise[33]
12. Developing processes that are flexible enough to handle a range of dispute types in an appropriate manner[34]
ADR experts in the United States have expressed some doubt as to whether the practice of ADR can ever relieve court overcrowding. Nor is there any evidence to show its elimination to a greater extent. Undoubtedly, however, there are methods of resolving disputes which are less expensive and speedier than formal litigation. This is being brought out in the labour field [35]where research has shown that dismissal disputes were generally dealt with on a less costly and more efficient source by arbitration than they were in the Industrial Court.[36]
A second goal of ADR, namely to improve community participation in the dispute resolution process, is of particular importance in South Africa. South Africa’s recent history has served amongst other things to isolate a substantial section of the population from the formal court system. The development of suitable forms of dispute resolution which encourage and enhance community involvement and allow legitimacy is therefore of fundamental importance to those who would see disputes and conflict effectively resolved.
The third goal of ADR is to facilitate entrance to justice, is perhaps aspiring. For example, parties, who with the help of a mediator, are able to resolve their dispute may not think themselves as having received justice but may simply think that they have attained the more diffident goal of settling their dispute.
The most vital goal of ADR is the fourth goal stated above, because it provides a more real dispute resolution. As already stated, it is of the core of the study and practice of alternative dispute resolution to provide mechanisms and processes which will resolve disputes more effectively than an automatic choice to litigation. [37]