Alternate Dispute Resolution Is More Beneficial than Court Proceedings - Coursework Example

Alternate Dispute Resolution is More Beneficial than Court Proceedings [Name of the Student] [Student ID Number] [Word Count: 1484] Alternate Dispute Resolution is More Beneficial than Court Proceedings Introduction This research work deals with the issues concerned with alternative dispute resolution (ADR) and its advantages, compared to court litigation in resolving disagreements between parties. This work contends that ADR is not inferior to court proceedings. As such, this work argues that ADR is much more beneficial than court proceedings, due to saving in several resources, including money and time. In addition, this process enables the parties to avert protracted court proceedings. Alternate Dispute Resolution (ADR) can be defined as processes, other than judicial determination, wherein an unbiased individual facilitates the resolution of a dispute between parties. In addition to alternate dispute resolution, ADR can also denote assisted or appropriate dispute resolution. On occasion, this term is utilised for processes that allow participants to manage their disputes without external assistance[How11]. Moreover, the processes of ADR include arbitration, conciliation, mediation and early neutral evaluation. These are now the staple for dispute resolution in tribunals and courts, between individuals and businesses, consumers and retailers, employees and employers, and between patients and health service providers. Thus, there are several benefits to be derived from ADR for society, government and individuals[Oje17]. Arbitration, which is a variety of ADR, constitutes an adjudicatory form of ADR. In the process of arbitration, differences between the parties, regarding their mutual legal rights, is referred and determined with binding effect. This involves the application of law by a tribunal and not a court. However, arbitration is a not a form of coercion, and the disputants can formulate their arbitration agreements as per their requirements[Zek08]. Moreover, arbitration promotes access to justice as it allows claimants to make claims that they would not have been in a position to bring in court. As such, ADR has been a prominent feature of Australian dispute resolution. During recent times, its increasing popularity has made it a feature of dispute resolution in matters pertaining to child protection. It has been suggested by several commentators that this advent of ADR in child protection issues can be attributed to the ever-increasing expenditure associated with child protection proceedings. These proceedings can easily escalate into intricate, protracted and hostile proceedings. In addition, the Law Reform Commission Reports, and the state and federal inquiries, have recommended the employment of ADR in child protection matters[Pet141]. Consequently, Australian jurisdictions have incorporated ADR in child protection matters. With regard to individuals and the government, they can engage in self-determination in an environment that is non-adversarial. In addition, the expenditure incurred is substantially reduced upon resorting to ADR. Furthermore, ADR entails substantial savings in time, relational benefit and case management benefits for courts. In fact, since the 1970s, ADR in Australia has experienced very rapid growth and change, and it has been advocated, criticised, modified and regulated[Oje17]. Moreover, appropriateness of the process, on the basis of the nature of the dispute and the traits of the parties, is central to ensuring the delivery of justice to the disputants via the process of ADR. For instance, when there is significant imbalance of power between the parties, then the ethical responsibilities and process involved should address their genuine and justified needs[Oje17]. For example, the Inspector-General of Taxation (IGT) Review into the Australian Taxation Office’s (ATO’s) use of Early and Alternate Dispute Resolution brought to the fore the differing views regarding the operation of the tax dispute system and the use of ADR by the ATO. This report discovered that in some cases, the ATO’s dispute resolution processes had produced positive results[Jon152]. In this regard, Bergin, J, who has also been vested with the chairmanship of the New South Wales (NSW) Supreme Court ADR Committee, had described the history of mediation in NSW. He emphasised that the scepticism of the Bar regarding ADR, had reduced over the years. This could be attributed to the outstanding success of the court-annexed mediation by Court Registrars in family provision cases. At present, Sydney’s King Street Court Complex provides a Mediation Suite for court-annexed mediations[Law12]. Moreover, Bergin J had observed that in 2010-2011, 57% of the family provision disputes had been resolved via mediation, and that 26% of issues had persisted with mediation despite failure in the initial stages. In just 17% of the issues, the parties had decided to reject settlement. As such, the courts in all the states and territories have been empowered to oblige civil proceeding to undertake mediation. [Law12]. Furthermore, contemporary legislative initiatives have been promoting a culture of mediation for all civil disputes. For instance, in Santos Limited v Fluor Australia Pty Ltd, Santos Limited had hired Fluor Australia in a project entailing the extraction, processing and export of coal seam gas in a liquefied form. The contract, which commenced in 2011, had been amended subsequently. This resulted in the conversion of the contract into a costs reimbursable contract subject to several conditions. Upon completion of the project, Santos Limited apprehended that Fluor Australia had claimed costs that had been excluded under contract and to which the latter did not have entitlement. Fluor Australia had been paid $5.43 billion, which constituted an overrun of $1.854 billion from its target budget estimate[San16]. Moreover, as of May 2016, Santos Limited had exercised its contractual rights by making an application to access the records of Fluor Australia, in order to ensure that the latter had not been charged or paid excluded costs. This had been opposed by Fluor Australia, which attempted to stay the application pending compliance with the dispute resolution clauses of the contract that had not been adhered to by Santos Limited[San16]. In his ruling, Douglas J, held that the dispute resolution procedures were enforceable. He also stated that this would hold good, despite the contention of Santos Limited that similar disputes had failed to be resolved via the dispute resolution clauses. In addition, an increasing number of managers, executives and general counsels have commenced to recognise the innate inefficiencies in dispute resolution through the courts. As a response to this undesirable situation, a new field has developed with considerable rapidity over the previous few decades, namely that of alternate dispute resolution. This process has been promoted by research in the area of negotiation and the intention to produce a more efficient method for resolving differences. As a consequence, an ever expanding pool of professional dispute resolvers have crafted an alternative to the court system[Rul02]. This system permits disputants to resolve their disagreements in a much swifter manner and with greater effectiveness. Furthermore, by employing the devices of arbitration, mediation and expert evaluation, disputants can resolve their disputes within weeks instead of years. The discussions in these mechanisms are confidential, and the parties have the freedom to decide the extent of the control that they would wish to exercise over the process [Rul02]. In general, the parties to such procedures obtain much greater satisfaction with the outcome, than they would have gained by approaching a court. In addition, the parties have the freedom to select the individual who is to function as their neutral facilitator. The latter are usually quite familiar with the subject matter of the dispute of the parties. This has the benefit of saving the parties the considerable time that they would have to spend, otherwise, in educating the judge[Rul02]. With regard to intricate and transboundary issues, dispute resolution permits the parties to resolve their disagreement without having to incur expenditure upon never-terminating legal analysis, regarding the law that would be applicable to each component of the dispute. Conclusion Thus, ADR usually, consists of arbitration, conciliation and mediation. It has gained in popularity in the recent past, and has promoted extraordinary growth in the revenue and profitability of the industrial sector. The increasing use of ADR to resolve commercial, workplace and family disputes has promoted growth in several ways. ADR, per se, provides several significant benefits, vis-à-vis litigation. Several businesses and governments have recognised the benefits of this mechanism for resolving disputes and have benefited substantially. This work establishes the contention that ADR is superior and more beneficial to parties, regarding the resolution of their disputes. During recent times, ADR has become popular, due to the several advantages that it provides, in comparison to court proceedings. Even the courts have been encouraging ADR, wherever feasible. According to the above discussion and case law, ADR is not inferior to court proceedings in resolving disputes among parties. This work does not agree with the claim that court proceedings are more effective than ADR procedures in resolving disputes. References How11: , (Howieson, 2011, p. 13), Oje17: , (Ojelabi & Noone, 2017, p. 5), Zek08: , (Zekos, 2008, p. 523), Pet141: , (Petrie & Kruger, 2014, p. 104), Oje17: , (Ojelabi & Noone, 2017, p. 15), Jon152: , (Jone, 2015, p. 572), Law12: , (Law Council of Australia, 2012), San16: , (Santos Limited v Fluor Australia Pty Ltd, 2016), Rul02: , (Rule, 2002, p. 2), Rul02: , (Rule, 2002, p. 3), Read More