The Purpose of Alternative Dispute Resolution (ADR) - Essay Example

The Purpose of Alternative Dispute Resolution Introduction In any organization where people often interact with people from both the within and without the workplace, inevitably and somehow potential ground for conflict and dispute arises. Different measures have since been in place for the control and containment of conflicts has since been developed (Simmon 2006, p. 8). Alternative dispute resolution (ADR) is one of the key approaches to solving this mystic axle. This paper, therefore, presents an evaluation of the Alternative Dispute Resolution in the context of conflict resolution. Further the paper presents the position in its attempt to explain the reason that is as compared to the whole modern case. Purpose of Alternative Dispute Resolution (ADR) Overview Nicol (2011, p. 18) defines ADR as any means of settling disputes apart from by means of lawsuit. Alternatively, ADR is the finding a workable solution to a conflict outside the courtrooms. In many public courts, a request may be submitted to review the validity of ADR methods, but time and again, the court would hardly overturn the ADR decisions and awards if the disputing parties opted for the formation of a valid contract by which to abide (Howard 2006, p.56). There are two major forms of ADR, namely arbitration and mediation. Typically, Tansley (2009, p.28) observed that ADR comprises of early neutral evaluation, negotiation, conciliation, mediation and arbitration. Owing to the burgeoning court queues, and the increasing fees for litigation as well as time delays that have plagued litigants for many years, more national states have opted for ADR programs to solve disputes (Nicol 2011, p. 29). Albeit scholars have noted that there are two main forms of ADR, negotiation has been most outstanding mode of dispute resolution approach that have gained great popularity. Negation as a means of dispute resolution allows the parties involved to meet within their own conveniences so as to settle the dispute between them. As such this approach provides an excellent platform where both the involved parties are in control of the whole process and the ultimate solution (Howard 2006, p. 47). Notably, Mediation is another sort of an informal alternative to litigation. Nicol (2011, p 18) observed that most often the mediators are also well-trained negotiators and can bring two opposing parties together. As negotiators, mediators attempt to work out a strategic settlement or agreement approach that is/ are somehow acceptable to both parties (Howard 2006, p. 57). In mediation, the one who always takes the lead in the process, the mediator in most cases does not decide on behalf of the parties neither does he/she decides the dispute. However, the mediator’s sole role in the process is always to aid the parties involved in the dispute communicate as they try to settle the dispute themselves. In other words, the mediation process leaves the control of the outcome with the parties involved in the dispute. Additionally, Tansley (2009, p.28) observed that mediation can be applied for a full scope of cases. It is important to note that mediation, as a dispute resolution method is more worthwhile in conflicts that involve close relatives who would like to preserve their rapport. As such when relatives or neighbours have a disagreement, then arbitration would be the best approach to solve the issues. Further, intermediation as an alternative to the conflict resolution method has also gained popularity in resolving disputes between investors and their stock brokers (Ludwikowski 2002, p. 32). However, mediation would not be appropriate in cases one of the parties is reluctant to cooperate or concede. Additionally, it may not be the suitable approach when any of the parties has a major advantage of influence over the other party (Nicol 2011, p. 29). According to Tansley (2009), arbitration is the shortened trialapproach involving inadequate findings and basic rules of some evidence. In most cases negotiation is controlled by an arbitral panel. The composition and the choice of an arbitrator for a given group are often not strictly structured within a particular given framework. A panel can be comprised of, an arbitrator- who either the two involved parties approve the same arbitrator or each selects a different arbitrator and then the two arbitrators select the third. In most cases, arbitrary case hearing lasts for days or weeks and the penal often meets momentarily in a day. After trial of the case, the panel deliberates upon itself and issues a written verdict or decision or the so-called arbitral award. It is worth noting however those opinions from such ruling are not for public records (Tansley 2009, p.37). Evaluation of ADR Reliance on ADR as a method for conflict and dispute resolution brings with it varied benefits. Observably, the benefits of this process solely depend on the type of ADR used and the circumstances of the particular case. It is noted that a dispute can often be settled much sooner when ADR is used (Tansley 2009, p. 41). In other words, ADR process can take a shorter period in bringing the case or dispute to a complete satisfactory conclusion. This is compared to bringing a lawsuit to trial where more time would be used just to bring the same matter to an absolute conclusion (Howard 2006, p. 58). In relation to this, use of ADR can save much money that otherwise could have been spent on various fees, law court charges and other hearing expenses in the trial proceedings (Howard 2006, p. 49). Further, the use of ADR preserves the control over the whole process and the outcome of the process. Noteworthy, in ADR the parties involved often play a greater role in shaping the entire process and its outcome. As compared to a court trial, in ADR both parties can have more opportunity to tell their side of the story than the small window provided by a court trial (Tansley 2009, p. 91). Moreover, as Howard (2006, p. 36) observed that some ADR processes such as mediation can allow the parties to tailor a more creative resolution to a particular dispute than are available in a trial that is guided by some principles. It is also noted that ADR is less adversarial and hostile way of resolving a difference especially between members of the same family. As such by use of a more experienced mediator, the parties can be assisted to communicate with each other so useful that the relationship that had previously existed is substantially preserved (Tansley 2009, p. 94). Additionally, unlike a court trial which end up with a winner and a loser situation, ADR provides the parties with win-win solutions that will enable them achieve their ends or goals as such it increases satisfaction for both parties involved (Howard 2006, p. 42). However, the use of ADR also has its share of disadvantages or limitation. For instance, by the use of ADR there is no guaranteed resolution. It is noted that alternative dispute resolution processes do not necessarily lead to a lasting resolution (Simmon 2006, p. 45). This, therefore, means that much time can be spent following a mediator resolution of a particular case out of the courts, and yet it still end up proceeding with litigation and trial in court. Further, arbitration decisions are often final and cannot be appealed (Howard 2006, p. 43). Contrarily, the decision of the courts can often be appealed if one is not satisfied with an appellate court owing to varied legal grounds and for numerous alleged procedural errors (Tansley 2009, p. 67). In any case, arbitration awards are limited since it cannot issue orders to compel one party to do or desist from doing something – injunctions (Howard 2006, p. 67). ii. Explain why European Union law takes precedency over domestic law in UK The European Union legislative acts bind all the members’ states just as their applicability. Under Article 288 of the Accord on the operations of the European nations, there are three types of legislative acts, namely, a regulation must have general application; a directive shall be binding, and finally a verdict shall be enfoceable in its totality (Ludwikowski 2002, p. 57). In this case, the directives apply only to Member States to which the guidelines are intended and directed and in this regard they often need implementing legislation to become effective (Howard 2006, p. 46). Observably, procedures are considered pertinent and so are supposed to become laws consistently in those Member States without any additional operations. Howard (2006, p. 66) observed that the European Community Act 1927 (ECA) permitted EU itemized instruments to form part of UK law without requirement separate enactment of each EU instruments. Within this parameters, Sec 2(1) of the ECA presents the statutory powers for the Treaty necessities and directly applicable secondary regulation to have all the legal rights and effects in the UK national laws without supplementary presentation. It is also observed that EU legislation that is not directly applicable e.g. the orders and decisions can be ratified either by primary or secondary legislation in the UK (Howard 2006, p. 59). The result is that the EU law takes superiority over domestic law in the United Kingdom. Further, the national laws of UK executed owing to the EU statute might have been brought into UK law, and the existing UK laws might have sufficiently implemented all if not part of the EU law. As a consequence of this background information, to respond to the fore-mentioned question as to why EU rules do take precedence over domestic laws in UK, an attempted answer would point to the legislative power that these laws have on the member states. In this light therefore it is worth bringing into view two principles that provide effect for the Community law within UK, namely S2 (1) and S2 (4) of the European Communities Act 1972 (Howard 2006, p. 79). That is to say that Section2 (1) stated that UK is under the directive to implement all rights directly ensuing from the treaties and Communities without further enactment. In the same vein, Section2 (4) of the European Community Act 1972, directed that English law should always be interpreted and had effect subject to the principle that the European law remain supreme. This means that the European law, therefore, takes precedence over all domestic laws (Howard 2006, p. 54). Evidently, section2 (4) is retroactive and probably in its approach, “any enactment passed or to be passed shall be understood and have effect subject to the previous provisions of this section of the European law.” (Howard 2006, p. 74) In this regards, it can be deduced that wherever and whenever national law clashes with Community law, the latter must be applied (Nicol 2011, p. 48). This section demands that any local law must as such be absorbed within the very frameworks of the Community rules but does not in any way render them useless. This line of thought provokes the concept of the doctrine of the supremacy of the European Community law. This tradition which based on the European Court of Justice (ECJ)’s interpretation of the treaties, presented a unique nature of the bilateral relations (Simmon 2006, p. 17). According to ECJ, “Community law imposes obligations on individuals and confers upon them rights that become part of their legal heritage.” Practically, this lays emphasis on the notion that the community law is to be held in higher esteem than the domestic laws. This is because in a way it consequently led to the diminishing or liquefying the position that the Parliament have since held as the exclusive lawgiver of the UK (Howard 2006, p.78). By creating Community law, the Member States limited their sovereign rights albeit within specific and limited fields. As such the Community Law have its own institutions, its own personality, its own legal capacity and more precisely the real powers which stem from a limitation of the sovereignty or transfer of powers from the States of the States of the community (Nicol 2011, p. 53). Retrospectively, in the UK, the sovereign power was initially held by the Parliament on the behalf of the people (Simmon 2006, p. 38). In other words, the Parliamentary Sovereignty was purely based on the very concept that there was no person or institution that could challenge any Act of Parliament. This as Howard (2006, p.53) observed the Acts of Parliament was considered the supreme law in the UK and the legislature could make or unmake any law. Arguing from this perspective, the Parliament’s unlimited law-making power de facto indicated that any issue of public interest could easily be regulated without prejudice to any former regulations. As such, in the opinion of Howard (2006, p.47) the government would take any action that the parliament could have considered necessary for the proper governance of the country so long as it was sanctioned by it. Against this backdrop, the sovereignty and supremacy of the Community Law limit the very sovereignty of the parliament which was regarded in high esteem (Ludwikowski 2002, p. 77). The doctrine of the supremacy of the European Community law established a new legal order of international law in which the member States have limited sovereign rights unlike before without (Simmon 2006, p. 79; Howard 2006, p.56). Consequently, owing to its supremacy, the Community legislation had become directly applicable to the UK law through enactment by the Parliament. Conclusion Alternative Dispute Resolution (ADR) refers to finding a solution to a dispute outside the courtrooms. In many public courts, a request may be submitted to review the validity of ADR methods, but in most cases the courts will rarely overturn the ADR decisions and awards if the disputing parties opted for the formation of a valid contract by which to abide ?(Simmon 2006, p. 48). ADR provide the two or more parties who are engaged in a dispute with a platform where they can understandably present a case and so find a resolution in the presence of the mediator r arbitrator. Further, ADR gives the parties a centre play where they are contributing to shaping the entire process of decision and so its outcome. Moreover, ADR is less adversarial and hostile way of resolving a dispute especially between members of the same family. As such by use of a more experienced mediator, the parties can be assisted to communicate with each other so useful that the relationship that had previously existed is substantially preserved (Ludwikowski 2002, p. 67). The connection that occurs between the Community and British laws is defined or describe the doctrine of the supremacy of the European Community law (EC law). The espousal and enactment of European Community law provided a common ground up to which the Member States are held together (Howard 2006, p.66). The EC law submerged the sovereignty of the member states, and so gain supremacy over all other member states. References Howard, C 2006, Information Package: State Trends in alternative dispute resolution, MD: Dispute Resolution Information Centre, U.S. Department of Justice, Office of Legal Policy, Rockville. Ludwikowski, R 2002, Supreme Law or Basic Law? The Decline of the Concept of Nicol D, 2011, EC Membership and the Judicialization of British Politics, Oxford University Simmon, K 2006, European Union: Consolidated versions of the Treaty on European Union and the Treaty establishing the European Community. Luxembourg: Office for Official Publications of the European Communities. Tansley, L 2009, Family Group Decision Making: Implementation in Child Welfare in the Province of Ontario. Read More