Importance of Alternative Dispute Resolution - Essay Example

? Does the use of Ombudsmen, Tribunals and ADR give the citizen a better solution for settling disputes than using the courts? Tutor Date Does the use of Ombudsmen, Tribunals and ADR give the citizen a better solution for settling disputes than using the courts? Introduction Since colonial times, the administration of justice in many parts of the world has more often involved other methods of arbitration in addition to the more preferred process of litigation that is court-based litigation process. Some of the colonial powers such as the British systematised and ensured enacting appropriate mechanisms for alternative forms of seeking and settling disputes. This paper therefore addresses the significance of the use of alternative dispute resolution (ADR), Ombudsman and Tribunals in justice systems of the world.  Importance of Alternative Dispute Resolution (ADR) In some countries, ADR is also referred to as external dispute resolution (EDR). It is found in countries such as Australia and encompasses dispute resolution techniques and processes that act as an enabling means for parties in disagreement to reach an amicable agreement. ADR is therefore an alternative system to a formal litigation. It encompasses resolving civil and communal disputes without involving the judicial process that involves court processes (Anderson1998, pp 113-128), although ADR has been a subject of heavy criticisms, the system has over the recent years gained popularity as well as acceptance among members of the bar and the general public. For example, some established courts now call for some parties to seek the services of ADR, mostly mediation before committing the cases to full trial in formal courts. The ever-increasing popularity of ADR may be partly attributed to the piling of cases in formal courts and the general perception that the system is cheaper as opposed to litigation. It is also widely believed that ADR upholds confidentiality. As is the case, the judiciary in some developed nations such as England has endorsed the system as it encourages mediation in settling disputes. ADR involves processes of mediation, negotiation, collaboration and arbitration and at times conciliation which as per now may fully be taken as a form of mediation. The system can satisfactorily be used alongside other legal systems, most notably the Sharia courts that falls within the jurisdictions of the common law as found in countries such as Australia (Anderson1998, pp 113-128), Mediation as one of the vital processes of ADR involves enlisting of a non-partisan third party to assist in the resolution of disputes. Such a person is expected to provide necessary ways for reaching a compromise. Arbitration on the other hand may be argued to be the most formal as far as the methods are concerned in settling of disputes without necessarily involving the courts.  Arbitration refers to a method where the parties involved in a dispute pass their concerns to an impartial party, who is mandated to come up with an impartial verdict on their behalf.  The judgment passed is considered final and legally binding to both feuding parties.  The benefit of arbitration is that the agreement to carry it out can be made at any given moment. The involved parties can also strike a compromise on the number of arbitrators to preside over the dispute.  The parties also have the mandate of appointing an experienced expert in the field.  The hearings regarding arbitration can take so many forms paper arbitration, which compels the feuding parties to submit all their concerns to the arbitrator through writing. The arbitrator then studies the submissions before making a decision.  Transparency and objectivity is upheld as the parties have the right to request for a hearing that they appear as well as their witnesses if any (Slapper & Kelly 2004, pp 26-43). Is there justice in Tribunals? The establishment of tribunals anywhere in world has raised more eyebrows than praises. This relates to their intentions and goals in addition to statutory specification of their mandate, functions and powers. On one hand, tribunals cannot lack some substantial levels of praise in relation to their performance. In regard to the intended goals of tribunals, there have been concerns in relation to the effectiveness of its organs in ensuring that justice prevail through the processes of mediation and reconciliation activities. Issues are also raised about the tribunals’ impact regarding easing of work pressure in the traditional courts. It is therefore a contentious issue in countries that have adopted the use of it. At a more general level it is important to critically consider whether justice is eminent through the working principles and stated goals of the tribunals. Most of them are established the world over with the hope that they would be very flexible, sensitive to existing culture and above all very reconciliatory. A big challenge crops up when it comes to implementation of the tribunal principles to ensure that justice is not compromised. According to Anderson (1998, pp 113-128), the suitability of tribunals is therefore judged based on the basis of the foregoing concerns. Based on one the administrative structure, the composition of the tribunals have been controversial in any place that they have been formed, thus the social and economic status of its members have brought about a lot of disputes. The issue of impartiality in the work of tribunals has been disputed because most of them are formed upon state directives thus their members are perceived to be darling of the state and not custodians of justice. The assumption of many that lend to overwhelming lack of confidence and trust in tribunals is concerns the issue of their relative ease of penetration by influential personalities. Another issue of disgruntlement as far as the works of tribunals are concerned is how disputes find their course into the tribunals. The main concern is whether individuals freely and willingly make their own decisions to take disputes to the tribunals. It is largely assumed that given the prevailing conditions where members of the tribunals are picked from the rich in the society, poor people may not get good levels of justice for they can be compelled to accept mediation to necessitate favorable outcome in favour of the mighty (Partington 2000, pp 34-69).This provides the basis of why most people prefer traditional courts to tribunals. Studies have tried to find out the relationship between social and economic status of people in dispute and their choice of the place to settle dispute. Another issue that puts tribunals in jeopardy is how they carry the actual work. Their main objective is to establish and uphold justice to the satisfaction of the disputants. The general public has a lot of interest in knowing how the mediation functions of tribunals are carried out and their consistency. The worry of many people is that since most laws of the land that governs the functioning of the tribunals have a lot of opportunities for biased decisions, it is widely believed that many tribunal leaderships get corrupted by powerful and influential people to tilt the scale of justice by forgetting that the powerless poor also deserves fair treatment. It is therefore important to consider it very necessary to audit the reception of disputes by tribunal leadership to ensure accountability and transparency (Partington 2000, pp 34-69). The role of Ombudsman in dispensation of justice An ombudsman basically performs roles of a trusted intermediary that works for the government or an organisation by representing a wider scope of the employers’ interests. Modern usage of ombudsman implies that the person holding the office works for the state but enjoys a high degree of autonomy and is charged with the duty of representing the concerns of the public. An ombudsman is therefore expected to act on complaints by instituting independent investigations and consequently address with impartiality the complaints brought before him/her. Thye are therefore expected to resolve disputes through mediation and recommendations. Although Ombudsmen are mandated to identify issues that results in breaching of individuals’ rights, little has been seen of vibrancy of such offices in countries that they in operation. People holding the office do not have the adequate legal back up to resolve disputes as almost all disputes are channeled to the formal courts. In view of the recent developments, people holding the office are viewed as whistle blowers as opposed to arbitrators (Collier & Lowe 1999, pp 52-68). Conclusion Although the alternative forms of resolving disputes such as office of ombudsman, tribunals and ADR can have powers to help in settling of disputes, as is the case in many countries they have not been empowered to carry out their roles without interferences. To some extent, they contribute to promotion of justice. For example, ADR and office of ombudsman are charged with the promotion of justice and protection of the rights of people regardless of status in the society. Other than looking for justice in the formal courts, alternative forms resolving disputes can be a milestone in dispensation of justice if only right mechanisms can be put in place to give mandate to the institutions so as to win public confidence. Bibliography Anderson, D 1998, ‘Negotiation and Dispute Settlement’ in Evans (ed.) Remedies in International Law: The Institutional Dilemma, Oxford: Hart Publishing. Collier, J. & Lowe, V 1999, The Settlement of Disputes in International Law, Oxford University Press. Partington, M 2000, Introduction to the English legal system, Oxford University Press. Slapper, G & Kelly, D 2004, The English legal system, Rutledge cavendish. Read More