Alternative Dispute Resolution as an Inappropriate Misnomer - Essay Example

Alternative Dispute Resolution’ is an inappropriate misnomer Introduction Alternative Dispute Resolution (ADR) has been publicized as one of the best improvements in the contemporary legal system. In preference to using the fraught-laden litigation legal procedures, ADR allows litigants to take the more convenient, inexpensive, resourceful, less complex, less arduous, more participative, and more efficient method of solving disputes.1 These most common types of alternatives of litigation in ADR include mediation, appeasement, negotiation, and arbitration, and the like. Since the start of the 21st century, ADR methods have increasingly become of the norm, as parties and legal representatives and courts recognized that these methods could help the solution of disputes swiftly, economically, and more confidentially than conventional litigation methods. In ADR, the judge in charge of the proceedings often stays the trial and judgment until the individuals implicated in the dispute come up with a solution. The individuals implicated in the dispute liberally negotiate with each other, but if they fail to reach an agreement, the litigants can assert for a trial de novo2 (i.e. a trial that will assume that no court-annexed arbitration occurred between the conflicting individuals). The litigants presiding over the ADR proceedings can also opt to use private tribunals or rent-a-judge. ‘Alternative Dispute Resolution’ is an inappropriate misnomer Notwithstanding the fact that ADR has become a well-accepted shorthand for the huge cluster of non-litigation methods of dispute resolution, there has been claims that the term ‘Alternative Dispute Resolution’ is an inappropriate misnomer. This assertion is usually argued with the explanation that ADR fails to distinguish the sequence in which dispute resolution processes are used; and it fails to separate the adjudication processes from each other. In light of this proposition, this paper seeks to come up with patent primary and secondary sources to support the affiliated claims In matters regarding the sequence in which dispute resolution in ADR develops, it is imperative to mention that though some ADR methods are well established and regularly used, alternative dispute resolution has no preset definition. The term ‘alternative dispute resolution’ takes account of a huge array of non-litigation methods. Most of these methods have little in common except for the fact that all are alternatives for litigation methods of dispute resolution.3 Litigants, legal representatives, and adjudicators are incessantly modifying the existing ADR processes or formulating new ones so as to cater for the specific demands of their legal disputes. As a corollary, it has been argued that third parties who are involved in the proceedings of intractable disputes usually focus on making the ADR methods work in favor of cases rather than focusing on following a proper sequence of dispute resolution. Consequently, disputes solved through ADR follow very different stages of resolution. According to Ury, Brett, and Goldberg all methods of solving intractable, frequent or any other type of dispute whether ‘litigatory’ or ‘nonlitigatory’ should follow a set of four sequential stages.4 These four sequential stages include diagnosis of the dispute, design the most appropriate action to take, implementation of the action, and finally evaluation, diffusion and exit. These sequential stages were put in place to help third-party interveners in the elucidation of their roles in the proceedings of dispute resolution. Constantino and Merchant stipulate that the dispute resolution processes in ADR are problematic because they focus on specific disputes instead of the more essential systemic problems. ADR processes are focused on handling the disputes once they arise regardless of the method and sequence used, but Constantino and Merchant reckon that third-party interveners should focus the sequence and procedure followed so that a clear path can be set for future disputes, which will utilize the method used. 5 The sequential stages help third-party interveners such as litigants, legal representatives, and adjudicators to focus more on the process of designing dispute-resolution systems than the content. Drawing reference from these assertions, no single method of designing dispute-resolution systems whether ‘litigatory’ or ‘nonlitigatory’ should deviate from the preset sequential stages. However, most ‘Alternative Dispute Resolution’ techniques deviate from the preset sequential stages whereby they use the most appropriate course of action at the time. As a corollary, this paper argues that indeed the term ‘Alternative Dispute Resolution’ is an inappropriate misnomer; because it fails to distinguish the sequence in which dispute resolution processes are used. In matters regarding the claims that ADR fails to separate the adjudication processes from each other, this paper reckons that indeed the adjudication processes used in ‘Alternative Dispute Resolution’ lack the autonomy aspect thus have to be combined in order to solve a dispute. In order to justify this claim, several ADR techniques will be looked at (i.e. mediation, negotiation, court-annexed arbitration, and private judging) so as to establish how adjudication processes from other ADR techniques are replicated in the process of coming up with a solution for a dispute. To begin with, mediation has many aspects of negotiation, which is also another technique of ADR. Like negotiation, mediation is generally private, voluntary, and informal. Both of the techniques also put more emphasis on problem solving instead of determining who is right and who is wrong, and the individuals implicated in the dispute are the ones who decide the outcome.6 In addition, mediation, just like court-annexed arbitration and private judging involves the presence a neutral third party chosen by agreement to facilitate the individuals implicated in the dispute resolve the dispute. The mediator just like the arbitrator and private judge listens to each individual’s version of the predicament in an informal setting and facilitates an environment that enables the individuals to come up with ideas for resolving the dispute.7 Similarly, the mediator just like the arbitrator and private judge encourages each individual to comprehend and assess the interests of the other individual. The only difference between the mediator, arbitrator, and private judge is that unlike the others the mediator does not “judge” the potency of either individual’s case. Essentially, the mediator has no authority to enforce an outcome on the individuals implicated in the dispute.8 However, if a solution is not arrived at, the mediator refers the individuals to a private judge or an arbitrator and the entire process becomes a process of a combination of adjudication processes from other different ADR techniques. As a corollary, this paper argues that indeed the term ‘Alternative Dispute Resolution’ is an inappropriate misnomer because it fails to separate the adjudication processes from each other. References Armstrong, M. J. and Hurley, W. J. Arbitration Using the Closest Offer Principle of Arbitrator Behaviour. Mathematical Social Sciences. 43: 19-26. (2002). Brahm, E.and Ouellet, J. “Designing New Dispute Resolution Systems,” Beyond Intractability., Conflict Research Consortium, University of Colorado, Boulder, Colorado, USA (2003) Constantino, C. and Merchant,C. Designing Conflict Management Systems: A Guide to Creating Productive and Healthy Organizations, London: Jossey-Bass Publishers (1996) Feinman, J. M. 1001 Legal Words You Need to Know. New York: Oxford University Press. (2003). Cheung, S. O. and Suen, C. H. A Multi-attribute Utility Model for Dispute Resolution Strategy Selection. Journal of Construction Management and Economics. 20(7): 557-568. (2002). Parrette, B. The Contract Disputes Act and the Administrative Dispute Resolution Act: A Richness of Remedies, Finally Ready for Trial?, 20 Pub. Con. L.J. 293 (1990). Ury, W. Bret, J. and Goldberg, S. Getting Disputes Resolved: Designing Systems to Cut the Costs of Conflict, London: Jossey-Bass Publishers (1988) Wenona V (Sto:lo Nation), Alternative Dispute Resolution (ADR) in Aboriginal Contexts: A Critical Review 11 (2007) (book review), available at http://www.chrc-ccdp.ca/pdf/adrred_en.pdf. Accessed on 11 April 2014 Read More