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Discus the different types of Alternative Dispute Resolution (ADR) and their proceeding with special emphasis on common ADR mechanism
Introduction
Alternative dispute resolution is a means by which disagreeing parties come to an agreement by avoiding lawsuits.<href=”#_ftn1″ name=”_ftnref1″ title=””>[1]The alternatives to a law suit are known as alternative dispute resolution. It is a collective term for ways in which parties can settle their disputes without involvement of a third party. ADR is now widely used by the general public and the legal professionals. In reality the court often requires the parties to use the ADR methods, mostly meditation before taking their case for hearing in the court.<href=”#_ftn2″ name=”_ftnref2″ title=””>[2] It is basically a way of out of court settlement in order to avoid the judicial process. “All ADR procedures, but negotiation, include the presence of a neutral person capable of providing an unbiased opinion who acts as a facilitator or decision maker. An exception exists with collaborative divorce or collaborative law where each party retains counsel who assists in the resolution process through explicitly contracted terms. “<href=”#_ftn3″ name=”_ftnref3″ title=””>[3] ADR is found very helpful especially in cases like divorce and other family matters which people don’t like to disclose in public, other professional liability cases, personal injury situations, and insurance issues. <href=”#_ftn4″ name=”_ftnref4″ title=””>[4]
All ADR procedures, but negotiation, include the presence of a neutral person capable of providing an unbiased opinion who acts as a facilitator or decision maker. An exception exists with collaborative divorce or collaborative law where each party retains counsel who assists in the resolution process through explicitly contracted terms.<href=”#_ftn5″ name=”_ftnref5″ title=””>[5] ADR traditions vary somewhat by country and culture. There are significant common elements which justify a main topic, and each country or region’s difference should be delegated to sub-pages.
- There are generally four types of ADR:
Mediation
Mediation is a method of dispute resolution where the third party helps the conflicting parties to reach a settlement. Disputants may mediate disputes in a variety of domains, such as commercial, legal, diplomatic, workplace, community and family matters. The process is private and enforced by law. Participation is typically voluntary. The mediator acts as a neutral third party and facilitates rather than directs the process. The mediator uses various ways to open and improve dialog between conflicting parties in order to help them to reach a solution.<href=”#_ftn6″ name=”_ftnref6″ title=””>[6]
If parties use meditation, the mediator will help them and the other party to reach an acceptable agreement and will act as a go between if the parties don’t want to meet. This can happen in divorce cases. If the supplier agrees to meditation, both the parties will be asked to give details of the dispute, including copies of any evidence and will be asked to sign a meditation agreement giving a framework for the meditation. The mediator may arrange joint or separate meetings between the two parties and will help the parties to identify the strengths and weaknesses of the case. If an agreement is reached, both the parties will be asked to meet to drafts the terms of the settlement. This will be legally binding unless the parties state otherwise and will prevent the parties from taking court action except to enforce the award. Meditation can be expensive but the parties may be able to get legal aid to help with the costs.
Some of the benefits of meditation are:
· Cost – If a mediator is hired, it will cost less money than hiring a lawyer and going through the standards and procedures of the judicial process.
· Control– The parties will have a say in the decision making process or resolution.
· Confidentiality- The private matter of the parties will be kept confidential especially family matters.
· Compliance– Because the result is attained by the parties working together and is mutually agreeable, compliance with the mediated agreement is usually high. This further reduces costs, because the parties do not have to employ an attorney to force compliance with the agreement. The mediated agreement is, however, fully enforceable in a court of law.<href=”#_ftn7″ name=”_ftnref7″ title=””>[7]
· Affinity– Parties work mutually in order to solve the dispute
· Experience and expertise– Mediators are trained to work in difficult situations and have technical skills to solve complicated issues of the parties.
Some disadvantages of mediation are:
· Time- Mediation is a very fast process which is beneficial for some parties who wants to resolve their problems quickly but on the other hand some people wants to deal with their problems slowly and don’t want to rush into quick decisions.
· Either party can withdraw- In mediation process any one of the parties can withdraw from the decision making process but in thecourt when they are under judicial process they can’t do that
· Absence of judge- When a judge makes a decision, one party wins and another party loses. Therefore the winning party gains satisfaction . Many people who doesn’t want to compromise and wants that satisfaction may not like the concept of mediation.
Other disadvantages might be that the mediator is an outsider party and they ight face a case on which they don’t have any previous knowledge. This might cause a hindrance in the case. If the parties hire a lawyer he will at least have some idea about the case.
Arbitration
In arbitration a third party acts as a private judge and makes a decision. It is a technique where the third party reviews the evidence of the case and makes a decision that is agreed by both sides. The arbitrator makes a decision based on the evidence provided by the two parties. The decision made by the arbitrator is kept confidential and cannot be made public. Arbitration is commonly used in employment and consumer related disputes, where arbitration may be authorized by the terms of employment or commercial contract. “Arbitration can be either voluntary or mandatory (although mandatory arbitration can only come from a statute or from a contract that is voluntarily entered into, where the parties agree to hold all existing or future disputes to arbitration, without necessarily knowing, specifically, what disputes will ever occur) and can be either binding or non-binding.”<href=”#_ftn8″ name=”_ftnref8″ title=””>[8] Non- binding arbitrator is kind of similar to mediation in a way that the decision has to be made by them. The only difference is that mediators give advice to the parties for compromising and arbitrator does not participate in the settlement process. Therefore, non- binding arbitration is not technically arbitration. <href=”#_ftn9″ name=”_ftnref9″ title=””>[9]
If someone is following arbitration technique, he/she cannot take any court action except in certain cases, suppose if the supplier does not pay. The arbitrator will usually be a member of the Chartered Institute of Arbitrators and often acts independently of the trade association. <href=”#_ftn10″ name=”_ftnref10″ title=””>[10]
As it’s previously mention that arbitrator can be voluntary or fixed. “The traditional model is voluntary and closely linked to contract law: parties often stipulate in contracts that they will arbitrate, rather than litigate, when disputes arise.” For example during the dispute resolutions of unions and employees there is always a arbitration clause known as collective bargaining agreement. The agreements says that the employers will take care of the employee if they face problems with wage, hours , working condition or job security, harassment, etc and the employee must agree that they will not sue the employer , if any disagreements occur. “Mandatory arbitration is more recent phenomenon “.<href=”#_ftn11″ name=”_ftnref11″ title=””>[11]
- Arbitration has several advantages:
· Efficiency is greatest in arbitration
· It is cheaper, faster and easier than court
· Arbitral procedures are non-public and can be kept confidential
· The language in which arbitration will take place can be chosen by the parties but in official court the language is always the national language of the country.<href=”#_ftn12″ name=”_ftnref12″ title=””>[12]
- “when the subject matter of the dispute is highly technical, arbitrators with an appropriate degree of expertise can be appointed (as one cannot “choose the judge” in litigation)”<href=”#_ftn13″ name=”_ftnref13″ title=””>[13]
- Some of the disadvantages of arbitration are:
· There might be biasness towards the stronger and wealthier parties
· The process might become complex
· The parties will not have any option if they are satisfied with the arbitrators decision.
· The consumer or the employees may get dominated by the arbitrator if they become dependent on the arbitrators.
· There are limited places for re-appeal that means that decisions cannot be overturned
· If the arbitration is mandatory then parties will not have the option to access the courts and to have a judge.
Conciliation
Conciliation is a process in which a third party, called a conciliator, restores damaged relationships between disputing parties by bringing them together, clarifying perceptions, and pointing out misperceptions.<href=”#_ftn14″ name=”_ftnref14″ title=””>[14] The conciliator may or may not be totally neutral to the interests of the parties. Successful conciliation reduces inflammatory rhetoric and tension, opens channels of communication and facilitates continued negotiations. Frequently, conciliation is used to restore the parties to a pre-dispute status quo, after which other ADR techniques may be applied. Conciliation is also used when parties are unwilling, unable, or unprepared to come to the bargaining table.
o Early Neutral Evaluation involves an informal presentation by the parties to a neutral with respected credentials for an oral or written evaluation of the parties’ positions. The evaluation may be binding or non-binding.<href=”#_ftn15″ name=”_ftnref15″ title=””>[15] Many courts require early neutral evaluation, particularly when the dispute involves technical or factual issues that lend themselves to expert evaluation. It may also be an effective alternative to formal discovery in traditional litigation.
o Facilitation improves the flow of information within a group or among disputing parties. The neutral, called a facilitator, provides procedural direction to enable the group to effectively move through negotiation towards agreement. The facilitator’s focus is on the procedural assistance to conflict resolution, compared to a mediator who is more likely to be involved with substantive issues. Consequently, it is common for a mediator to become a facilitator, but not the reverse.<href=”#_ftn16″ name=”_ftnref16″ title=””>[16]
o Fact-Finding or Neutral Fact-Finding is an investigative process in which a neutral “fact finder” independently determines facts for a particular dispute usually after the parties have reached an impasse.<href=”#_ftn17″ name=”_ftnref17″ title=””>[17] It succeeds when the opinion of the neutral carries sufficient weight to move the parties away from impasse, and it deals only with questions of fact, not interpretations of law or policy. The parties benefit by having the facts collected and organized to facilitate negotiations or, if negotiations fail, for traditional litigation.
o Interest Based Negotiation or Interest Based Bargaining is an established negotiating technique through which the parties meet to identify and discuss the issues at hand to arrive at a mutually acceptable solution. <href=”#_ftn18″ name=”_ftnref18″ title=””>[18] It is a positive effort by the parties to collaborate, rather than compete, to resolve a joint dispute. The focus of negotiations is on common interests of the parties rather than their relative power or position. The goal is to reduce the importance of how the dispute occurred and create options that satisfy both mutual and individual interests. Interest based negotiations are also referred to as “principled” or “win-win” negotiations. This informal process is one of the most fundamental methods of dispute resolution, offering parties maximum control over the process. It does not necessarily require the use of neutrals.
o Minitrial (Mini-trial) is a misnomer. This technique provides for a summary presentation of evidence by an attorney or other fully informed representative for each side to decision makers, usually a senior executive from each side.<href=”#_ftn19″ name=”_ftnref19″ title=””>[19] After receiving the evidence, the decision makers privately discuss the case. “Minitrial” is not a small trial; it is a sophisticated and structured settlement technique used to narrow the gap between the parties’ perceptions of the dispute and which “facts” are actually in dispute. This hybrid technique can occur with or without a neutral’s assistance, but neutrals frequently facilitate the processes for presentation of evidence and discussion among the decision makers, and serve as a mediator to reach a settlement. “Mini-trials can be more expensive than most other ADR techniques because the cost of presenting even summary evidence to senior executives is high. Therefore, this process is generally reserved for significant cases involving potential expenditure of substantial time and resources in litigation.<href=”#_ftn20″ name=”_ftnref20″ title=””>[20]
o Partnering is a preemptive technique to avoid disputes before they arise by building a strong relationship between parties. <href=”#_ftn21″ name=”_ftnref21″ title=””>[21] The goal is for the parties to avoid a major dispute, or alternatively, minimize disruptive impact, by focusing on the development of a cooperative working relationship rather than an adversarial one. Partnering is a relatively new hybrid form of dispute resolution.
o Mediated Arbitration (Med-Arb) is a combination of mediation and arbitration. Initially, a neutral third party mediates a dispute until the parties reach an impasse. After the impasse, a neutral third party issues a binding or non-binding arbitration decision on the cause of the impasse or any unresolved issues. The disputing parties agree in advance whether the same or a different neutral third party conducts both the mediation and arbitration processes. Use of the same person for both processes creates a problem when the mediator turned arbitrator must ignore previously acquired confidential information.<href=”#_ftn22″ name=”_ftnref22″ title=””>[22]
Litigation
Litigation, although not an ADR technique, is intertwined with ADR. Not every case can or should be settled. However, each case proceeding toward litigation benefits by an evaluation for resolution. Consideration of using ADR techniques for resolving an aspect of a case such as merit, quantum, attorney fees, or future obligations is common.
Ombudsman
Ombudsman (Ombudsperson) is an organizationally designated person who confidentially receives, investigates, and facilitates resolution of complaints. The ombudsman may interview parties, review files, and make recommendations to the disputants, but normally is not empowered to impose solutions. Ombudsmen often work as management advisors to identify and recommend solutions for systemic problems in addition to their focus on disputes from individual complainants.<href=”#_ftn23″ name=”_ftnref23″ title=””>[23]
I. Private Judging, also called “rent-a-judge”, is an approach midway between arbitration and litigation in terms of formality and control of the parties. The parties typically present their case to a judge in a privately maintained courtroom with all the accouterments of the formal judicial process. Private Judges are frequently retired or former “public” judges with subject matter expertise. This approach is gaining popularity in commercial situations because disputes can be concluded much quicker than under the traditional court system.
II. Settlement Conference is an ADR technique either permitted or required by statute in many jurisdictions as a procedural step before trial. An assigned or jointly selected “settlement judge” typically applies mediation techniques to strongly suggest a specific settlement range based on his or her assessment of the case. However, these judges play a much stronger authoritative role than mediators since they also provide the parties with specific substantive and legal information.
III. Peer Review Panels or Dispute Resolution Panels use groups or panels to conduct fact-finding inquiries, assess issues, and present a workable resolution to resolve disputes. In workplace personnel disputes the panel is generally composed of knowledgeable employees and supervisors. Panels may be standing groups or formed ad hoc from a pool of qualified employees and supervisors. In contract disputes, the panel is often composed of two or more neutral subject matter experts selected by the disputing parties. Decisions of the panel may or may not be binding, depending on the advance agreement of the parties. This method attempts to resolve disputes at their inception to avoid traditional litigation.<href=”#_ftn24″ name=”_ftnref24″ title=””>[24]
IV. Summary Jury Trial is a formal but abbreviated trial involving a presentation by the disputing parties to a panel of jurors. This process “reality tests” the case with a non-binding jury verdict to encourage the parties to negotiate for a settlement based upon their new assessment of litigation risk. <href=”#_ftn25″ name=”_ftnref25″ title=””>[25]
Conclusion
Basically using ADR method people can resolve their problems, they may be awarded with compensation, and the procedure is less formal than going to court. It is also less costly than going to court and the procedure is also kept confidential. The commonly used ADR techniques are arbitration, mediation and sometimes conciliation. There are some other techniques also which can be helpful, if they are used effective.
Recommendations
How can we choose which method is right for us? In order to decide which method is right, parties should consult a lawyer and think about the cost, time and amount of control that each method has. Also, it is very important to keep in mind that they hire a professional who has experience in cases similar to theirs.
References
· “Alternative Dispute Resolution”( 2008) <href=”#Types_and_features”>http://en.wikipedia.org/wiki/Alternative_dispute_resolution#Types_and_features. (Accessed on 2 July 2012).
· “Alternate Dispute Resolution”.http://legal-dictionary.thefreedictionary.com/Early+Neutral+Evaluation.(Accessed on 5 July 2012)
· “Alternate Dispute Resolution”. http://legal-dictionary.thefreedictionary.com/Early+Neutral+Evaluation.(Accessed on 5 July 2012)
· Advice Guide. www.adiceguide.org.uk. .(Accessed on 5 July 2012)
· Partnering.http://adrresources.com/adr-methods/partnering
.(Accessed on 5 July 2012)
· <href=”#Mediators”>http://en.wikipedia.org/wiki/Mediation#Mediators
· ABA Family Legal Guide. Family Law.” Mediation and Collaborative law”. http://public.findlaw.com/abaflg/flg-3-4l-5.html
· http://en.wikipedia.org/wiki/Arbitration
· http://en.wikipedia.org/wiki/Arbitration
· Global Legal Resources. “Alternative Dispute Resolution”. http://www.hg.org/adr.html ( accessed on 2 July 2012)
· M.Abdul Haleem Quadri, (2003) “Fact-finding techniques” http://www.scribd.com/doc/6902721/Fact-Finding-Techniques (Accessed July 10 2012)
· Alternate Dispute Resolution. “Section I Alternative Dispute Resolution Techniques and Agency Practices”. http://www.opm.gov/er/adrguide/section1-a.asp (accessed on 10 July 2012)
· Australian Human Rights Commission, “Conciliation: how it works” http://www.hreoc.gov.au/complaints_information/conciliation.html ( accessed on 10 July 2012).
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