Alternative Dispute Resolution - Essay Example

ALTERNATIVE DISPUTE RESOLUTION (ADR) By of the of school Table of content PART I Introduction…………………………………………………………………………3 Arbitration and Meditation………………………………………………………….3 Purpose of Alternative Dispute Resolution (ADR)…………………………………4 Success of ADRs in Resolving Disputes with reference to Acas Services…………6 PART II Laws in the United Kingdom (UK)………………………………………………...7 Conciliation an Arbitration Service (Acas) in UK…………………………………7 Reasons for Precedence of the EU Law over the Domestic Law in UK…………..8 Conclusion………………………………………………………………………….11 References………………………………………………………………………….12 PART I Alternative Dispute Resolution (ADR) Introduction Alternative Dispute Resolution (ADR) is any method or means of resolving or settling disputes, which is carried out outside the courtroom and is not litigation. The courts are however at times requested to the ADR methods used in solving disputes. ADR is usually carried out in a number of ways. The common ways of ADR include negotiations, arbitrations, mediations, early neutral evaluations, and conciliations. Over the years, ADR has become very common and have been adopted by many people around the world especially owing to the fact that they eliminate the long queues at the courts and the high costs charged for litigation process by the lawyers who mainly have the interest of making themselves money besides helping their clients with the case1. ADR programs can either be voluntary or mandatory depending on the state and the agreements of the state and the lawmakers of the state. Arbitration and Meditation Arbitration and Meditation are the two most common methods of ADR. Negotiations, on the other hand, are usually attempted as the first method of dispute resolution by most individuals or people who find themselves amidst conflicts. Negotiations, however, do not work very well as in most cases the involved parties tend to disagree due to self-interests. The advantage of Negotiation is however that it gives the two parties a chance to meet, control the resolution process and solution without necessarily involving other outside parties2. On the hand, in Mediation a mediator is involved. The mediators are individuals who are trained on how to handle negotiations. He or she brings the two parties who are in conflict together and attempts to come up with a solution to the conflict that both parties can agree to or disagree. He or she ensures that the solution that he or she decides to come with does not favor any one party more than the other. Arbitration involves Arbitral Panel, which chooses an arbitrator that both parties who are in conflict agree with. The rules of evidence are simplified, and it is more like a trial with discovery that is limited. Purpose of Alternative Dispute Resolution (ADR) The first major purpose of using Alternative Dispute Resolution (ADR) as opposed to Litigation is to speed up the process of dispute settlement. Most countries are faced with a shortage of judges in their judicial systems. As a result, a lot of cases stay piled up in the courtrooms waiting hearing dates, which in extreme cases end up taking years to resolve. Also, the judges usually need to go through the cases over and again in order to reach a conclusive fair verdict, which means a lot of time is required in solving each and every case. The use of ADR reduces the time required to solve the case and hence eliminate the queues in the courtrooms. Also, the time required to go and record a police statement and the time taken to appoint an appropriate lawyer that an individual feels satisfied with is reduced3. An ADR method such as Negotiation will mean that the individuals will not go to the court, appoint lawyers or require a judge, and therefore they dispute can be solved in a very short duration of time for as long as both the parties involved feel satisfied with the settlement of the dispute in question. Another major purpose of using ADR is to reduce the costs that are usually incurred during the resolution of a dispute4. In the litigation process of dispute resolution, there are a number of legal payments that are required to be made. One of the legal payments is the lawyer fee, which most clients are never capable of providing. Also, other payments include the payment of bail by the accused for his or her release as he or she awaits trial. There are also other court-related payments such as the transports costs to and from the courtrooms and to lawyer offices5. These legal and other courts related payments are usually very costly, and the purpose of the ADR methods such as Mediation is to eliminate these payments and to make the processes dispute resolution less expensive and more affordable. The third major purpose of ADR to solve disputes is to improve the overall satisfaction of the parties in conflict with the manner in which the dispute is resolved and the outcome of the dispute resolution. Within the walls of the courtrooms, the outcome of any dispute resolution is dependent on the judge. Any judgment passed on the accused by the judge is final, and it does not matter whether the disputing parties feel satisfied with it. This is unlike when ADR methods are used in which the disputing parties have a say in the outcome of the dispute resolution. In ADR methods, the disputing parties after resolution of disputes are usually more satisfied with the outcome as compared to settlements made in courtrooms6. The manner in which the dispute is resolved is also always more agreeable to the disputing parties as compared to the disputing parties in the courtrooms. In Mediation for instance, the two parties usually voluntarily sign an agreement showing that the decisions they have taken are not forced onto them but are as a result of personal satisfaction with the outcome of the dispute settlement. Also, in Negotiation both the parties in dispute reach a unanimous agreement which means that they are both satisfied with the outcome of the dispute settlement. The fourth purpose of using ADR methods is to increase the overall dispute settlements. As commonly seen in courts, disputing parties are in a lot of cases showing dissatisfaction7. As a result of this, some cases end up taking a lot of time as the disputing parties especially the accused move the case to higher court levels such as the Supreme Courts and the Courts of Appeal. The use of ADRs has, however, managed the number of disputes settled as the disputing parties after the settlement of the disputes do not continue disputing but are now obliged to comply with the agreements that they made during the time of the dispute settlement8. Success of ADRs in Resolving Disputes with reference to Acas Services Acas has provided different individuals with useful information on: how to find jobs, the necessary career breaks that individuals should take, issues of dismissals, disciplinary and redundancy, issues on state, workplace and personal pensions, employment contracts and working hours, taxes to be paid and minimum wage rate and the rights of individuals while the are at work and/or in trade unions. Acas has an organization has managed to solve quite a number of office related disputes by the use of the art of ADR methods. Most of the cases solved by Acas would take a long time in courts and for no reason such as Pension issues in which some old people might even die before they see justice9. Acas has also ensured good working relations in many different workplaces, as people are well aware of their rights and responsibilities and hence has minimized dispute at workplaces. Acas also has shown a lot of success in ADR which is evidently visible on how it initiates good practice at work, how it offers training and business solutions and in its operations on early conciliation. From the success of the organization therefore, we can conclude that ADR methods of solving disputes are efficient, reliable and fast and the appropriate ADR methods should be adopted for dispute resolution whenever the qualities mentioned above are desired. PART II Laws in the United Kingdom (UK) There are two laws in the UK, the European Union Law, and the Domestic Law. The European Union (EU) Law is a body, which is composed of treaties and legislation, which include rules and directions to be followed. The rules and directions directly and indirectly affect the state members of the European Union. European Union law has three sources, which include primary, secondary and supplementary law10. The Domestic law, on the other hand, is the body made of treaties and legislations with rules and directions to be followed in the United Kingdom. Conciliation an Arbitration Service (Acas) in UK It is also worth to note that Advisory, Conciliation an Arbitration Service (Acas) is a UK based organization that deals with promotion of relations in employment and excellence in human resource. Acas uses Advice, Conciliations, and Arbitration to resolve disputes and problems in workplaces. Acas has also shown success in giving impartial guidance on issues such as the right and responsibilities of employees11. There are a wide range of services and information that Acas provides inclusive of citizenship and living, business and self-employment, crime justice and the law, driving and transport, housing and local services, visas and immigration, money and tax, disabled people, births, marriages, deaths and care, and many more other related and relevant services12. Reasons for Precedence of the European Union Law over the Domestic Law in UK The first reason the European Union (EU) Law precedes over the Domestic Law in the United Kingdom is that the EU Law is quite extensive, broad and highly competent. The EU consists of many institutions within it such as the Council of Ministers; the European Council, the European Parliament and the European Commission, which all act as a unit to pass the EU laws. The EU Laws govern other 27 member states of the European Union except the third countries and, therefore, likely to be thoroughly thought through and analyzed before being passed13. The Domestic Laws, on the other hand, are just passed by the national legislation of the UK alone and are likely to be rushed laws without deeper analysis before they are passed. Also, the EU laws are much more detailed and clearer the domestic laws in the UK and this, therefore, makes them very competent and desired by the individuals within the UK. However, despite these laws being extensive and more competent than the domestic laws in the UK, the national legislature at times opt to pass them in the national legislation before they are adopted and implemented in the UK14. Another reason as to why the EU law precedes over the Domestic Law in the UK is because the UK is slowly incorporating the Law into their legal systems bit by bit. The UK as a country does not want to incorporate the whole law into the Domestic Law system but instead incorporates part of the EU Laws one at a time. At the moment the UK has incorporated a large number of the EU Laws into their Domestic Laws and if this trend of incorporating the laws one by one by one is not stopped, sooner or later the Domestic Law will be turned into full EU laws15. The EU laws are in most cases not absorbed directly into the UK domestic law but first passed through the national legislation of the United Kingdom where the pros of the law are seconded and the cons challenged and then members of the national legislature then take a vote. If the number in support of the incorporation of the law is more than the number of those who disagree that the law be incorporated then the EU law is passed and becomes a part of the UK domestic laws. A good example is the Europeans Communities Act and the Human Rights Act. Also, the European Union Law is preceding over the domestic law in the United Kingdom is because most of the UK citizens prefer the EU law to the domestic laws. A good example is seen in the how people react to questions they are asked about what they think of the two laws16. Most people in the country say the laws are better that the domestic laws in terms of efficiency and these creates a lot of pressure on the national legislature forcing them to incorporate the laws into the domestics to avoid fully adopting the whole EU law. Another pressure comes on the fact that the other member states of the European Union have also adopted these laws making the laws to be seen to be preferred by not only the UK citizens but also the other European countries17. The two laws also if compared to one another, it is preferred by those who seek citizenship in the UK and those that live around the UK. More specifically in this issue is the Law of Deportation, which has won the hearts of many visitors in the UK from the other Europe countries. The law is much lenient on them and those who have attained citizenship in the UK by other means other than birth or naturalization especially marriages. Another challenge for the domestic law that makes the EU law to precede over it is the fact that the European Union Law has become a national matter of concern and is now even taught in law schools18. This is a major challenge because the more the citizens in the UK learn about the EU Law, the more they like it and push for its implementation. A majority of the law students who have studied both the two laws agree that the European Union law is much better and in the process influence the other fellow UK citizens to push for its implementation. Most lecturers in the law schools also support the incorporation of the EU laws, and this has even heightened the push19. The knowledge about the European Union laws has spread all over the age groups, from children to grownups, and all across the social classes of the different citizens and most of these individuals agree that the European Union law is better that the existing Domestic Laws. Teaching of the European Union law in major law schools in the UK can, therefore, be considered to have a created a major impact on the precedence of the European Union laws over the domestic laws within the country. The final reason that makes the European Union Law to precede over the Domestic Law in the UK is the fact that the other members of the EU such as Austria and Croatia except only the third countries have also incorporated these EU Laws in their countries. By these other EU countries incorporating the EU laws in their country the UK is also challenged incorporate these laws as it is one of the members of the European Union. The members of the European Union have always interlinked with one another and supported one another and so UK is obliged to do as they do if she has to remain an ally of the other member states of the European Union. As a result of this pressure from the other member states of the European Union, the law in the UK, therefore, is slowly changing from their original domestic law to the new law incorporated from the European Union20. However, these decisions are not undertaken by the UK solely to keep the relationship between the state and other member states but also because the UK as a state also feels that these laws are worth being incorporated. Conclusion In can be concluded therefore that in the United Kingdom, the European Union law precedes over the Domestic Law, which was originally the law that governed the UK before the formation of the European. The reasons for precedence can be attributed to the fact that most people in the United Kingdom and the surrounding states prefer the European Union Law to the existing Domestic Law because it is extensive and competent. The spread in knowledge in schools and among the UK citizens has also pushed to a great extent the precedence of the European Union Law over the Domestic Law. References Acas Policy Discussion Papers. 2005. Making more of Alternative Dispute Resolution. Acas. 2015. Promoting Employment Relations and HR Excellence. Retrieved from www.acas.org.uk/ Bernadine Van Gramberg. 2006. Managing Work Place Conflict. Alternative Dispute Resolution. Catherine Barnard and Steve Peers. 2014. European Union Law. Cornell University Law School. LII. Alternative Dispute Resolution. Retrieved from www.https://www.law.cornell.edu/wex/alternative_dispute_resolution Damian Chalmers, Gareth Davies and Giorgio Monti. 2014. European Union Law: Text and Materials. Europa. 2015. Summaries of EU Legislation. Retrieved from www.europa.eu/legislation_summaries/index_en.htm European Union. 2015. How the EU Works. Retrieved from www.europa.eu/about-eu/countries/index_en.htm Gordon Anthony. 2012. UK Public Law and European Law. Gugliemo Maisto. 2006. Tax Treaties and Domestic Law. Karen Davis. 2013. Understanding European Law. Kathleen J. Kelly. 2002. Alternative Dispute Resolution. Principles, Processes, Practices. Retrieved from https://books.google.co.ke/books?id=achLAQAAIAAJ&Q=ADR&hl=en&sa+X&ei=VMUiVYnHL807sQGcllOACA&redir_esc=y Massimo Fabio. 2010. Customs Law of the European Union. Nancy F. Atlas and Stephen K. Huber. 2000. Alternative Dispute Resolution: The Litigator’s Handbook. New Zealand Ministry of Justice. 2004. Advantages and Disadvantages of ADR. Benefits of ADR. Retrieved from www.justice.govt.nz/publications/publications-archived/2004/alternative-dispute-resolution-general-civil-cases/4-advantages-and-disadvantages-of-adr The Law Donut. 2015. 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