Alternative Dispute Resolution - Essay Example

Alternative Dispute Resolution Introduction Since time immemorial up to the present, human history is fraught with disputes and conflicts with neighbors, business partners and even families. Then there are the clan wars and wars between countries which really started with a little disagreement that escalates into episodes of violence. Fortunately, we have long passed the ancient times when these conflicts are settled in an open armed battle or duel and the winner takes all. In modern United Kingdom there exist six accepted ways of settling disputes, which apparently are all nonviolent and are designed to serve the interest of justice. These modes of settling disputes are negotiation, mediation, conciliation, neutral evaluation, expert determination, adjudication, arbitration and litigation (AGO 2011). Litigation is intentionally mentioned last because it is considered as a last recourse primarily due to the amount of money and time that it requires. Apparently, except for the lawyers, not many people are fond of filing and litigating cases in court. And for those who want to avoid it altogether, they resort to out-of-court methods which are collectively referred to as alternative dispute resolution or ADR. This paper shall focus on the main forms of alternative dispute resolution and discuss the benefits as well as the criticisms on ADR in the English legal system. Additional and Appropriate ADR is an acronym for Alternative Dispute Resolution but it also holds two other meanings which are as pertinent as the original. Insofar as Lord Bingham is concerned, ADR stands for “additional dispute resolution” while for most family lawyers, the letter “A” stands for ‘appropriate” (Hale n.d., p17). Indeed, they are “additional” in the sense that they function as supplementary processes which help unclog the court’s dockets; they work alongside the legal system, not lieu of or without it. Moreover, they are “appropriate” because the specific method is voluntarily chosen by the parties they chose that which they deem will work best in consideration of their specific personalities and circumstances. But regardless of what the “A” stands for, what is ADR? The legal definition for ADR is contained in the glossary of the Civil Procedure Rules which states that ADR is a “collective description of methods for resolving disputes otherwise than through the normal trial process” (AGO 2011). Needless to state, ADR is an option that conflicting parties may choose in order to settle their issues in the most expeditious and least expensive way. However, when all else fails, parties would still be constrained to bring their grievances to the courts because effective as they are, ADR will never replace the formal and technical means of ascertaining the facts as well as the relative rights of the parties which only the courts can offer. At present, the English legal system encourages the parties to resort first to alternative dispute resolution before going to court. In fact, parties who refuse to submit to ADR without valid and compelling reason may find themselves at a disadvantage later on when their case is finally heard in court. Main Forms of ADR in UK ADR includes mediation, conciliation, neutral evaluation, expert determination, adjudication, arbitration, however, within the context of the English legal system, negotiation is not considered as an ADR (AGO 2011). Hence, for purposes of this paper, discussion shall be limited to the main forms of ADR in the United Kingdom. Mediation. Also referred to as “structured negotiation” (AGO 2011, p9), mediation is basically a formal meeting of the two conflicting parties facilitated by a neutral third party acting as a bridge to help them meet halfway. Most mediation processes are completed within one day or a few days. Once the parties have been settled, they execute a written agreement which is enforceable in court provided the document as well as the contents thereof is valid and legal. The mediator can make or break the process; he holds the crucial task of coaxing the parties into settling their dispute by themselves. Even though he is part of the process, the mediator is still considered as an outsider insofar as the dispute is involved. He listens to each of the party’s positions but he cannot make comments or opinions about it. He guides them to the path that leads to settlement but he cannot force them to resolve the issue if one or both parties are unwilling to budge on their demands. Expert Determination. Especially for questions of fact that require specialized knowledge, expert determination is most helpful when the dispute pertains to a technical issue like that in the field of engineering or medicine. Before the expert begins to conduct his independent investigation, the parties decide whether or not his findings shall be binding or merely a third party opinion. In essence, the expert merely examines and determines which of the two disputing parties is correct and which one makes the wrong calculations or interpretation of data. (ADRNow) Adjudication. As a form of alternative dispute resolution, adjudication became officially recognized in the UK through the Construction and Regeneration Act of 1996. In the said law, adjudication was made a mandatory provision in construction contracts (AGO 2011). In this method, there is no face-to-face meeting and the adjudicator does not conduct any investigation of his own. The parties submit their claims, allegations and supporting evidence to the adjudicator who examines them and then issues a decision based on the documents submitted. Compliance with the binding decision is usually enforced through peer pressure because trade and professional organizations often require their members of good standing to honor decisions in adjudication proceedings. (ADRNow) Arbitration. Said to be the oldest among all the other forms of alternative dispute resolution (Hale n.d, p17), arbitration is governed by the Arbitration Act of 1996. Arbitration is a private and confidential proceeding, no records are kept and no decisions are published for the general public. The arbitrator is a neutral third party who renders a decision that is binding on the parties. In UK arbitration proceeding are governed by the Arbitration Act of 1996. Benefits and Criticisms of ADR The number of people opting for ADR kept on growing. And they saw that it was good. Hence, the Civil Procedure Rules later carried these words: “Active case management includes encouraging the parties to use an ADR procedure if the court considers that appropriate”. In essence, the courts itself recognizes the many benefits of going through ADR. The most obvious advantage of ADR is the reduced expense in terms of both money and time. The aggrieved person no longer has to weigh in his cause in terms of cost and benefit. They no longer have difficulty in answering the perennial question, “Is it worth all the expense and trouble?” Under ADR, a case could be resolved within a few hours or days; it all depends on the disputing parties and how receptive they are of the other. As such, the financial cost is significantly low. ADR follows procedures that are neither technical nor complicated. As such, there is not much need for a lawyer which takes a huge chunk of litigation costs. Minimal lawyer participation means minimal expense for attorney’s fees. As a matter of fact, some people even go through ADR without the representation of any lawyer. However, ADR is still far from being a perfect system and it does have its share of shortcomings and criticisms. First is the fact that not all are created equal and parties may come to the negotiating table on uneven terms. When the playing field is not leveled, then there is the risk that the other party agreed into the settlement because he was intimidated. Examples of these situations are in the case of a labor dispute between a lone employee versus a corporate employer and between a battered wife and her sadist husband. In the latter case, the husband obviously has the upper hand when the two parties are brought together for a face-to-face meeting. Another cause of major concern against ADR is the enforceability of the settlement agreement which is both its boon and bane. On the one hand, settlements reached through the process of mediation or ombudsmen are treated just like any other contracts which do not have the power of compulsion over the parties like court decisions do. When one party refuses to honor his commitments in the agreement, then only the courts can order its execution. On the other hand, settlements or decisions in an arbitration or adjudication process are legally binding and unenforceable with limited recourse of appeal to the courts. Parties who are unhappy with the decision rendered by the adjudicator or arbitrator just have to live with it. Conclusion The ability to settle disputes in a civilized manner is perhaps one of the characteristics that separate humans from the rest of the animal kingdom. But the aptitude to settle disputes amicably and start over with renewed if not strengthened business or family relationships is what makes man superior over the rest. Alternative dispute resolution provides the necessary window for conflicting parties to reconcile their differences and move forward without much battle scars as they would have gained had they gone to full-blown court litigation. It bears stressing though that ADR is not meant to replace the courts; rather they are supplementary and complementary to the formal court litigation processes. They help the judicial system by freeing precious docket space for the really important and urgent matters that require the wisdom and expertise of the judges. ADR have its own set of advantages and disadvantages and it is for the parties to weigh their options and choose the most appropriate path to take. Whether they choose mediation or arbitration, the most important thing is the fact that there is mutual effort to resolve the conflict and achieve peace. And in any case, that is always a good start. References: ADRNow 2011. Types of ADR. Available from . [December 10, 2011] Attorney General’s Office, Ministry of Justice. May 2011. The Dispute Resolution Commitment: Guidance for Government Departments and Agencies. Available from . [December 10, 2011] Hale, LB n.d. Equal Access to Justice in the Big City. Available from . 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