Discuss the application of Alternative Dispute Resolution (ADR) in international disputes, the concern authorities and institutions.

Abstract:

ADR helps us to solve the conflicts between two parties without going to court. They try to solve the problem with the help of a third party who can understand both of their problems and comes to a solution. The third party will not be biased to any party and that is why it is possible to come to a good solution.

There are 3 commonly-used methods of resolving disputes without going to court:

Introduction:

ADR basically is an alternative to a formal court hearing or litigation. Alternative Dispute Resolution (ADR) (also known as external dispute resolution in some countries, such as Australia) includes dispute resolution processes and techniques that act as a means for parties who are not agreeing at any point to come to an agreement short of litigation. It is a collective term for the ways that parties can settle disputes, with (or without) the help of a third party. ADR are ways and methods of resolving disputes outside the judicial process (formal litigation – court).

Despite historic resistance to ADR by many popular parties and their advocates, ADR has gained widespread acceptance among both the general public and the legal profession in recent years. In fact, some courts now require some parties to resort to ADR of some type, usually mediation, before permitting the parties’ cases to be tried (indeed the European Mediation Directive (2008) expressly contemplates so-called “compulsory” mediation; attendance that is, not settlement at mediation). The rising popularity of ADR can be explained by the increasing caseload of traditional courts, the perception that ADR imposes fewer costs than litigation, a preference for confidentiality, and the desire of some parties to have greater control over the selection of the individual or individuals who will decide their dispute. Some of the senior judiciary in certain jurisdictions (of which England and Wales is one) are strongly in favour of the use of mediation to settle disputes.[2]

Application of ADR:

Alternative Dispute Resolution comprises various approaches for resolving disputes in a non-confrontational way, ranging from negotiation between the two parties, a multiparty negotiation, through mediation, consensus building, to arbitration and adjudication .

Conflict is endemic to human society, among individuals and groups, and it is important to manage it. We find stories in the Bible, in the Islamic culture, among Native Americans, First Nations in Canada, and many other traditions that describe processes that have been used from the earliest times to find peaceful solutions to various disputes, and much can be learned from the past. In recent decades, the various conflict resolution approaches have become a widely accepted field both of academic study and of practice, with official and/or legislative functions in many countries. In international relations, they plays an increasing role in containing, managing and resolving potential sources of conflict.

While conflict can be dangerous, it also carries the possibility of producing creative cooperation in a win–win solution. The key to this is for participants to engage as joint problem solvers, seeking to resolve the dispute, and to try and “enlarge the pie” rather than acting as adversaries and aggravating the situation.

A mediator can play a valuable role in this process, who can facilitate a negotiation process which has come to a dead end, helping the parties concerned to focus on their essential interests rather than defend (or attack) fixed positions. The principles and procedures of consensus building are dealt with in some detail. The article outlines the principles of negotiation, based on interests and needs of the parties, the use of proper communication, and maintenance of a working relationship as an essential component for reaching a durable agreement. It lists and considers the essential skills needed by negotiators and mediators, and points the different cultural expectations (national, regional, religious, or professional) and the psychological aspects that affect perceptions and communications. It outlines a range of strategies for and approaches to mediation, and the ethical problems that may arise.[3]

 

 

Alternate Dispute Resolution in International Dispute:

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 settlement.[4]

ADR Chambers International (“ADRCI”) is the leading Canadian organization that specializes in International Arbitration and Mediation. Through the use of the UNCITRAL Arbitration Rules as supplemented by its own state of the art rules, ADRCI provides practitioners and their clients uniformity and credibility in the field of the international arbitration and mediation. The mandate of ADRCI is to provide a single cost effective Canadian source for all types of international dispute resolution, including formal international arbitration, mediation, med-arb or other hybrid systems of dispute resolution.

 ADR Institute of Canada

The ADR Institute of Canada (ADR Canada) is a national non-profit organization that provides national leadership in the development and promotion of dispute resolution services in Canada and internationally. In concert with seven regional affiliates across the country, we represent and support professionals who provide dispute resolution services and the individuals and organizations that use those services. Our membership includes over 1,700 individuals and 60 business and community organizations from across Canada. Our standards and programs reflect our commitment to excellence in the field.

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. 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 an awareness and interest in it among budding professionals in law schools/universities all around the globe.

Mandate: The practice and promotion of various forms of alternative dispute resolution including, but not limited to arbitration, collaborative law, facilitation and mediation.

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

The Commission on Arbitration aims to create a forum for experts to pool ideas and impact new policy on practical issues relating to international arbitration, 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.

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 Institutionalised Arbitration. The Court facilitates through conciliation and arbitration the settlement of environmental disputes submitted by States, natural or legal persons (“Parties”).

LEADR is an Australasian, not-for-profit membership organisation formed in 1989 to serve the community by promoting and facilitating the use of dispute resolution processes including mediation. These processes are generally known as Alternative Dispute Resolution or ADR.

The PCA is an intergovernmental organization with over one hundred member states. Established in 1899 to facilitate arbitration and other forms of dispute resolution between states, the PCA has developed into a modern, multi-faceted arbitral institution that is now perfectly situated at the juncture between public and private international law to meet the rapidly evolving dispute resolution needs of the international community. Today the PCA provides services for the resolution of disputes involving various combinations of states, state entities, intergovernmental organizations, and private parties.[5]

ADR is used to settle a variety of disputes in American institutions, including the family, churches, schools, the workplace, government agencies, and the courts. ADR is not widely used in cases of intractable conflict until those conflicts seem to become ready (some say “ripe“) for resolution. This sometimes happens when the conflict reaches a hurting stalemate — a situation where it becomes clear that neither side can win; yet, they are being substantially hurt by continuing the struggle.

Ripeness is crucial for ADR processes to work effectively, and ADR has been used in    appropriate cases. For example:

  • Arbitration and negotiation have become common ways to resolve difficult international business disputes;
  • Mediation and arbitration are now commonly used to settle labor-management disputes that often used to seem like intractable situations (See the essay on formerly intractable conflicts.);
  • International mediation has been used to resolve difficult international and ethnic conflicts, with varying degrees of success;
  • Consensus building has become a popular process for dealing with public-policy disputes, especially intractable environmental disputes.

Advantages and Disadvantages of ADR:

Advocates of ADR believe that it is superior to lawsuits and litigation. First, ADR is generally faster and less expensive. It is based on more direct participation by the disputants, rather than being run by lawyers, judges, and the state. In most ADR processes, the disputants outline the process they will use and define the substance of the agreements. This type of involvement is believed to increase people’s satisfaction with the outcomes, as well as their compliance with the agreements reached.

Most ADR processes are based on an integrative approach. They are more cooperative and less competitive than adversarial court-based methods like litigation. For this reason, ADR tends to generate less escalation and ill will between parties. In fact, participating in an ADR process will often ultimately improve, rather than worsen, the relationship between the disputing parties. This is a key advantage in situations where the parties must continue to interact after settlement is reached, such as in child custody or labor management cases.

  • ADR does have many potential advantages, but there are also some possible drawbacks and criticisms of pursuing alternatives to court-based adjudication. Some critics have concerns about the legitimacy of ADR outcomes, charging that ADR provides “second-class justice.” It is argued that people who cannot afford to go to court are those most likely to use ADR procedures. As a result, these people are less likely to truly “win” a case because of the cooperative nature of ADR.
  • Similarly, critics believe that ADR encourages compromise. Compromise can be a good way to settle some disputes, but it is not appropriate for others. In serious justice conflicts and cases of intolerable moral difference, compromise is simply not an option because the issues mean too much to the disputants. Another concern is that ADR settlements are private and are not in the public record or exposed to public scrutiny. This could be cause for concern in some cases. For example, using ADR to settle out of court could allow a company to resolve many instances of a defective product harming consumers, without the issue getting any public exposure. On the other hand, a court ruling could force the company to fix all problems associated with the bad product or even to remove it from the market. [6]

Conclusion:

We saw that ADR is helping us in many ways. We all have different kinds of disputes and sometimes it becomes difficult for us to solve it. So, ADR help us to resolve those disputes outside judicial process with or without the help of a third party.

 Bibloigraphy:

 

What is Alternative Dispute Resolution?, n.d., Retrieved from  November 30, 2011,

         http://settlement.org/sys/faqs_detail.asp?faq_id=4000353

Alternative dispute resolution, n.d., Retrieved from  November 30, 2011,

          http://en.wikipedia.org/wiki/Alternative_dispute_resolution

Alternative dispute resolution, n.d., Retrieved from  November 30, 2011,

         http://www.hg.org/adr.html

Shamir,Y.,2003. Alternative dispute resolution and their application. Retrieved from  November 30, 2011,

         http://unesdoc.unesco.org/images/0013/001332/133287e.pdf

Law and justice institution, n.d., Retrieved from  November 30, 2011,

        http://web.worldbank.org/WBSITE/EXTERNAL/TOPICS/EXTLAWJUSTINST/0,,           contentMDK:20755866~menuPK:2035600~pagePK:210058~piPK:210062~theSitePK:1974062, 00.html

Alternate Dispute Resolution, Retrieved from  November 30, 2011,

          http://www.beyondintractability.org/bi-essay/adr

Alternate Dispute Resolution, Retrieved from  November 30, 2011,

           http://www.infolaw.co.uk/partners/alternative_dispute_resolution.htm

Pros and Cons of ADR, Retrieved from  November 30, 2011,

           http://www.adrnow.org.uk/go/SubSection_41.html


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[1] What is Alternative Dispute Resolution?, n.d., Retrieved from  November 30, 2011,

         http://settlement.org/sys/faqs_detail.asp?faq_id=4000353

 

[2] Alternative dispute resolution, n.d., Retrieved from  November 30, 2011,

http://en.wikipedia.org/wiki/Alternative_dispute_resolution

 

[3] Shamir,Y.,2003. Alternative dispute resolution and their application. Retrieved from  November 30, 2011,

http://unesdoc.unesco.org/images/0013/001332/133287e.pdf

 

[5] Alternative dispute resolution, n.d., Retrieved from  November 30, 2011,

http://www.hg.org/adr.html

 

[6] Alternate Dispute Resolution, Retrieved from  November 30, 2011,

http://www.beyondintractability.org/bi-essay/adr