The term “alternative dispute resolution” or “ADR” is often used to The describe a wide variety of dispute resolution mechanisms that are short of, or alternative to full-scale court processes or judicial process. In March 1998 the United States Agency for International Developments (USAID) Centre for Democracy and Governance published an extensive manual entitled Alternative Dispute Resolution Practitioners’ Guide (ADR Practitioners’ Guide).Various scopes of ADR have broadly been discussed in this guide. ADR is a process which may be freestanding (non-judicial), or court annexed (judicial), bindings or non-binding, formal or informal, mandatory or voluntary in nature. It is to be emphasized that the term ADR is misleading in a sense that it is not always alternative to formal litigation and very often it is a part of litigation particularly for those ADR processes which are court-connected.
This essay will be discussed in two separate parts in the context of ADR. One is “the scope of applicability of ADR”. And another is “Appling ADR to resolve dispute which involves crime?
2. The scope of applicability of ADR:
“The ADR Practitioners” Guide spells out how ADR can apply the different scopes. It explains that ADR systems may be designed to meet a wide variety of different scopes. Some of them are directly related to improving the administration of justice and rule of law. Some, however are related to other development objectives, such as economic restructuring, or the management of tensions and conflicts in communities.
3. Kinds of Alternative Dispute Resolution Mechanisms
There are various kinds of alternative dispute resolution mechanisms that could be employed as per the needs and requirements of the dispute in question. The standard mechanisms in usage can be broadly divided into two categories binding and non-binding procedures. These procedures may be also classified into primary procedures and hybrids/derivatives of these primary procedures:
3.1 Primary Procedures
3.1.1 Negotiation/ Private Judging
Negotiation is always available to parties in a dispute, and is often an excellent process. The negotiating parties may even end up settling their disputes by constructing an agreement. This process provides an organized
yet informal method of identifying the issues of contention between the two parties, outlining their respective interests and persuading each other to resolve the dispute.
It is difficult to present a single broad and comprehensive definition of mediation process because of the extensive variety of different ways in which the mediation process can take place. Mediation can be defined as the intervention into a conflict by an acceptable, impartial, and neutral third party. However, this third party, the mediator, does not have a qualitative decision-making power to assist the parties in voluntarily reaching their own mutually acceptable settlement of the issues in conflict.
Mediation can be broadly classified as follows:
18.104.22.168 Facilitative Mediation
In this kind of mediation, the mediator abstains from offering ideas and encourages the parties to bring ideas in.a facilitative mediation, the mediator takes an active role only in controlling the “process”. The process means things like setting the ground rules for how the problem will be solved. The mediator asks questions to identify the interests of the parties and the real issues in the disagreement. The mediator abstains from suggesting solutions, offering opinions etc.
22.214.171.124 Evaluative Mediation
An evaluative mediation focuses on the legal rights of the parties rather than their interests. The mediators role in this kind of mediation is to hear the different points of view and speculate on what a judge and jury would decide if this case were brought to the court. The mediator evaluates the issues at hand and tries to come to a workable resolution of the dispute. Since this type of evaluation requires a mediator with legal expertise, evaluative mediators are often at all means of experts.
126.96.36.199 Transformative Mediation
In this type of mediation the mediator does not direct the parties to topics or issues rather encourages the parties to present their open and honest narratives in order to change or transform the nature of parties conflict interaction by enabling them to appreciate each others viewpoints and to enable them to handle the conflict in a productive manner.
Arbitration is an adjudicatory dispute resolution process in which or more arbitrators issues a judgment on the merits (which may be binding or non-binding) after an expedited , adversarial hearing, in which each party has the opportunity to present proofs and arguments. Usually, arbitration emanates from a contract between two parties. In such a case either of the parties can invoke the arbitration clause and make an endeavor to resolve the dispute in light of the terms and conditions of the said agreement.
Arbitration is different from mediation because the neutral arbitrator has the authority to make a decision about the dispute. Compared to traditional trials, arbitration can usually be completed more quickly and is less formal. For example, often the parties do not have to follow state or federal rules of evidence and in some cases, the arbitrator is not required to apply the governing law. The parties can either decide the procedure mutually and get their dispute resolved by an independent arbitrator or get their dispute resolved by any of the flexibility and autonomy to tailor make the procedure as per their needs and requirements, which eventually leads to a cost-effective resolution of the dispute.
Another valuable feature of the interference model is the high proportion of cases that are settled voluntarily. Therefore, in terms of how many cases reach a voluntary settlement and how few decisions are successfully appealed to the Courts, the performance of compulsory expert arbitration in the interference procedure is a very good example of how well a similar system could work for the settlement of disputes after grant of exclusive privilege.
3.2 Hybrid and derivative procedures
3.2.1 Expedited Arbitration
Expedited arbitration is an arbitration procedure that is carried out in a shorter time and at a reduced cost. It is a procedure employed by the World Intellectual Property Organization (WIPO) that condenses a regular procedure of arbitration.
In order to achieve this objective, the expedited arbitration provides for certain stringent rulesthat make it stand apart from regular arbitration. In this procedure the request for arbitration is accompanied by a statement of claim and involves a sole arbitrator rather than a three-member tribunal. A statement of defense including the counterclaim is to be accompanied along with the answer to the request for arbitration within 20 days. A reply to the counterclaim is to be submitted within 20 days after the receipt of the statement of defense and hearings are to take place within 30 days after the receipt of the answer to the request for arbitration. The proceeding shall close within three months of the said statement of defense or the establishment of the tribunal (whichever is later) and a final award shall be submitted within one month of the said closure of proceedings. The procedure also puts an upper limit on the costs to be borne by the parties for the procedure.
3.2.2 Expert Determination
Expert determination is a procedure whereby the parties to a dispute submit to an expert all or certain matters which have arisen which may arise between them.
Expert determinations are especially suitable where it is necessary to determine issues of technical or scientific nature. The expert involvement is based on a contract between the parties. The expert determination may be binding on all or have effect as a recommendation to the parties.
Disputed issues that may benefit from expert determination include the valuation of an intellectual property asset or the establishment of royalty rates, the interpretation of the claims of a patent, the extent of the rights that are covered by a license etc.
3.2.3 Mini trial
This is a voluntary process in which cases are heard by a panel of high level principals from the disputing sides with full settlement authority, a neutral may or may not oversee this stage. First, parties have a summary hearing, each side presenting the essence of their case. The process normally reveals the strengths and weaknesses of each partys case and motivates the party representatives to settle the dispute amicably. If an agreement is reached, it is set out in writing and signed by the representatives and shall be binding on the parties. However, if the parties cannot settle the dispute, the proceedings will terminate in the days after the date of the information exchange.
Many trials are most effective and most frequently used in disputes involving large corporations with relatively equal bargaining power and are a good method for resolving disputes in which the underlying law is fairly settled. Like other modes of resolution, many trials are totally confidential and any offers or statements made in the process are inadmissible at a court trial.
4. Advantages of alternative dispute resolution mechanisms to related disputes:
The alternative dispute resolution mechanisms shower a whole range of advantages on the parties as against the conventional mode of dispute resolution by courts.
4.1 Forum Certainty
Intellectual property rights are territorial by nature i.e. any dispute pertaining to the intellectual property shall be dealt with by only that particular jurisdiction in which the said right is registered or protection is conferred. With the global exploitation of IP, various complexities with respect to Intellectual Property disputes have arisen like multiplicity in court proceedings in the various jurisdictions concerned. Problems further get multiplied when there are inconsistent outcomes from the court proceedings at the various jurisdictions where the dispute is being contested.
Since the very foundation of an alternative dispute resolution mechanism is an agreement between the two parties, the parties can therefore, mutually decide and make a choice as to the preferred forum. Therefore, this mechanism condenses a plethora of potential disputes across the globe into one single procedure and thereby simplifies the dispute.
4.2 Party Autonomy
The parties can decide and agree upon any of the standard procedures for dispute resolution or even come up with the procedure of their own. The parties can take up any of the established modes for dispute resolution, can decide the tentative time, the number of hearings, the limit of disclosure, etc. The parties may also choose the applicable law, place as well as the language of the proceeding. The Alternative Dispute Resolution procedure awards the parties to the dispute the opportunity to exercise greater control over the way their dispute is to be resolved. This factor plays a major role in increasing the efficiency of the procedure and also cutting down the time and cost of the procedure.
4.3 Cost Saving Mechanism
If properly handled, the alternative dispute resolution mechanisms offer speedier resolution of disputes than adjudication in a court of law. An average expenditure in a patent dispute in a US court, taking into consideration the appeals to the Supreme Court would roughly come down to $2 to $4 million to litigate. the expenditure multiplies manifold when the disputes are being contested in multiple jurisdictions.
Patent disputes involve inventions, technical know-how and other information and it becomes necessary to disclose and described the invention or certain parts of the same to prove the novelty and innovation in the said invention. Adjudication in a court of law is carried out publicly and any of the documents submitted before the court become public documents and therefore can be examined by anyone. Though in certain jurisdictions, on request/application made by either party and in case of a multi-jurisdictional international dispute, suppression or gagging orders could be obtained to secure such confidential information, it is highly improbable to expect such orders to be granted to the party by the courts in all the jurisdictions. Disclosure of such sensitive information, even in a single jurisdiction, could prove fatal for such invention and the party concerned.
4.5 Avoiding regional issues
Every region and its corresponding legal system have unique characteristics and problems.
4.5.1 Developing and Under-Developed Countries
The problems due to corruption and red-tapism usually infest the landscape of most of the developing and the underdeveloped counties where these practices often jeopardize the system of dispute resolution. Another glaring problem is that of an underdeveloped legal system and an under-developed Intellectual Property regime. This makes it hard for the foreign party to convince the fairly young system in the applicability of well established doctrines and principles employed and practiced elsewhere. This gives one party an undue advantage over the other party.
4.5.2 Developed Countries
Problems are not localized only to the young systems but are blatantly evident in the most developed systems as well. Extraordinary costs in patent litigation and problems due to parallel litigation on the same EPO application leading to inconsistent outcomes, for instance, are glaring examples of problems faced by the European patent litigation system. Due to inconsistency of judgments within the European Union itself, neither of the parties to the dispute stands satisfied after investing huge sums in litigation. European Union has been struggling with this problem of fragmentation for quite some time.
By choosing an independent and autonomous dispute resolution mechanism, the parties can avoid these problems as the prerogative to make a choice of procedure, laws, language etc. lies solely with the parties.
4.6 Lucid process ensuring consistency
The simplicity of the procedure is another area where the alternative modes of dispute resolution edge over the often so complex litigation procedure. The very fact that the parties have autonomy to elect the preferred procedure rules out the possibility of delays due to technical hitches which are ever so blatant in a civil litigation. The alternative modes of dispute resolution give the parties enough flexibility to simplify the procedure as per their requirement.
Moreover, the alternative methods of dispute resolution ensure consistency especially in cases where two parties have ongoing parallel litigation which often leads to inconsistent and even contrary results leaving both the parties dissatisfied. A classic example of inconsistency in the outcomes of parallel litigation is the Epilady cases where parallel litigation went on in various jurisdictions resulting in different outcomes and correspondingly different interpretations. Both in Germany and Holland, the claimant succeeded at trial whereas in Britain he was held to be an infringer.
5. Disadvantages or Limitations of ADR:
Although, these alternative methods of dispute resolution have several potential advantages over litigation as given hereinabove, there is a need to assess and examine the limitations suffered by the existing mechanisms. The alternative mechanisms of dispute resolution do not always prove to be a good alternative to litigation. Therefore, we now need to assess as to whether the use of a private consensual mechanism like arbitration or mediation poses any threat to the resolution of such disputes?
5.1 ADR Programs cannot correct systemic injustice, discrimination or violations of human rights:
ADR systems often reflect the accepted norms of society. These norms may include discrimination against certain groups and populations. When this is true, ADR systems may hinder standards of group or individual rights. In India, for example, the lok adalots were generally credited with resolving large number of cases efficiently and cheaply in the mid-1980s before the system was taken over by the government judiciary. Women, however did not like this system, especially for family disputes, because resolution of disputes was based on local norms, which often were discriminatory towards women.
5.2 ADR programs do not work well in the context of extreme power imbalance between parties.
These power imbalances are often the result of discriminatory norms in society. Even when the imbalance is not a reflection of discriminatory social norms, most ADR systems don’t include legal or procedural protections for weaker parties. A more powerful or wealthy party may press the weaker into accepting an unfair result, so that the settlement may appear consensual, but in fact result from coercion.
5.3 ADR settlement does not have any educational or different 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. Societal and individual interests may be better served by court-sanctioned punishment, such as imprisonment.
5.4 Not necessarily an instrument to reduce corruption.
It is not necessary the case that replacing or supplementing litigation with ADR could reduce corruption. To the extent that a culture of corruption exists, conciliators or arbitrators could fall prey to the same temptations as judges.
5.5 Not consistent with Rule of Law.
It is argued by some critics that the essential attributes of rule of law and due process of law are often not followed in some forms of ADR. While the expansion of ADR has given some an opportunity to resolve their disputes in an inexpensive fashion, some uses of ADR that have proven to be a tool to disenfranchise vulnerable parties In the USA courts occasionally have refused to enforce the results of ADR proceedings that were unfair as to be unconscionable or inconsistent with fundamental due process.
After deliberating on the various aspects of arbitration, mediation and other mechanisms and studying the status and performance of the same in various jurisdictions, we have come to the conclusion that the alternative methods of dispute resolution offer a very good opportunity to the parties to get their dispute resolved agreeably but it can also be seen that these alternative methods cannot be employed at all the times. It has to be decided by analyzing the nature of the dispute, the relationship between the parties and the real intention of the parties. Therefore, there is a need to understand and identify the situations where the alternative methods of dispute resolution are more suitable as against the traditional method of litigation and vice versa.
The alternative methods of dispute resolution are not likely to be successful in cases where either of the parties wants the dispute to set a precedent; either of the parties seeks an injunctive relief over the other, the parties have been involved in litigation, where the dispute involves unsettled legal issues etc.
Alternative methods of dispute resolution are however, a more potent alternative as against traditional litigation where the parties have an ongoing business relationship, the parties have a similar market size, where the dispute is factual or deals with settled legal issues, there the dispute would be publicly embarrassing or could be misused, etc.
In the end, it would be appropriate to conclude that since it is an, alternative dispute resolution mechanism; it might be a good idea to keep it as an „alternative to litigation rather than generalizing one or the other.
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