ADR in the Courts - Book Report/Review Example

ADR in the Courts In the article ADR in the courts: Progress, Problems and Possibilities, the authors discuss at length the institutionalization of alternative dispute resolution (ADR) as used in the courts. ADR, and particularly its growth, is shown to have revolutionized the way court perceive their role, shifting from passive trial providers to active problem solvers and advocates of conflict transformation and community change. Mediation, as an ADR, is given particular focus as courts are increasingly not considering the idea of litigation as the primary way of settling disputes. However, according to Senft and Savage (2003), the use of mediation as an ADR in the court is riddled with both problems and possibilities. When mediation is administered by or connected to the court, it raises concerns about the court’s and mediation’s own core values and goals, and the article suggests strategies to promote mediation as an ADR to satisfy the court’s needs. This paper will summarize the article and give the writer’s personal opinion. Senft and Savage (2003) note that the most significant cause of mediation growing across the country is the courts’ legal authority. By institutionalizing it in the courts, millions of citizens who would otherwise not have learnt of the process have been exposed to mediation. However, while courts are increasingly making use of mediation, serious concerns are also arising from the way it is being used. The courts have been too aggressive in embracing the process, or various others labeled as such, at the expense of attention to clarity and goals. According to the article, the proponents of mediation intended it to be an alternative to the adversarial, expensive and bitter experiences of litigation, which is also alienating. It was their intention that mediation provides an opportunity to change the negativities of conflict interaction to more positive procedures. People affected by disputes or conflicts were meant to be brought together and hold conversations about the aggravating circumstances between them and explore and, more importantly, agree on a mutual solution. In this sense, Senft and Savage (2003) suggest that the core value offered by mediation as an ADR in courts is the opportunity for the litigants to experience conflict that is non-alienating but, rather, augments human connections. This value is a manifestation of the promise of voice and choice that mediation gives all participants. Mediators, ADR providers and administrators of court programs, therefore, bear a special responsibility of being clear about the processes they offer and their underlying objectives. In this sense, mediation should not be expanded as an ADR before its core values are defined in a way that describes the process. Without losing sight of settlement, mediation affords litigants and their representatives the ability to speak without constraints and the choice to listen to the views of others. This is intended to provide more information and insight into the dispute as well as productive dialogue towards its settlement. While some aspects of a conflict may appear irrelevant in the process of litigation, they are crucial to the conflicting parties because they help narrow down issues to only the significant ones. In this way, clarity on important points is achieved and good faith is restored. Because solutions are based on the participants’ terms, they can fulfil the core values of mediation even without even in the absence of complete settlement. The values can also be fulfilled even if the participants decide to let the litigation process and judicial system decide on the legal outcome. Therefore, the primary goal of mediation in courts was to expose more people to its core values as an ADR. On their part, because of their role in resolving disputes and interpreting the law, courts rely on due process, consistency of results and their legality as core values (Senft & Savage, 2003). While the law and the way courts interpret it are concerned with the way particular interpretations affect the general relations between people, the legal system does not concern itself with enhancing the relationships of the people in front of it. It relies on reason and the roles cast in people rather than emotions and people as individuals respectively. In that sense, the core values of mediation and the legal system are very different. Senft and Savage (2003) note that critics are terming court-annexed mediation as capitulating to the routines of the courts. Ideally, court-ordered mediation does not exhibit the original intentions of mediation as an ADR because the conflicting parties do not speak freely or even take part in the mediation process. This trend makes mediation a mere settlement conference, and that is the key concern about its use in courts, because core values are seen as clashing. Critics further opine that court-annexed mediation is a different process possibly intending to satisfy different core values. The article suggests that conflict solvers need to identify interests, understand the importance of efficiency and how it relates to public confidence in mediation in order to promote mediation as an ADR that also meets the requirements of courts. However, according to Senft and Savage (2003), critics who argue that court-ordered mediation capitulates to the court’s routine approach the matter in an either/or fashion, which, ironically, makes their claims victims of the very assumptions they are criticizing. This approach by the critics does not address or resolve the issue of clashing core values and because of this, Senft and Savage (2003) offer possibilities in the form of six strategies. They include, in that order, clarifying mediation and other ADR process terminology and further align theory with practice; eliminating coercion possibilities in the mediation process; educating the litigants and attorneys more on mediation; improving program quality control by giving ethical standards training and measuring competency based on performance; ensuring mediation is available as an alternative process and redefining success; and incorporating courses on ADR and mediation law school education. The strategies require that terminologies be changed and defined clearly. The authors further suggest that mediation as a process be differentiated into three conceptions that are relationship, individual personal growth and agreement (Senft & Savage, 2003). They also point out that the courts must clarify the terms they use to describe mediation and consistently use it in reference to a process that reflects mediation and its core values, which include being an alternative to alienating experiencing. That way, not only will mediation not be perceived as a settlement conference, but even the role of the providers of the service will not be confused with those of conveners of settlement conferences. Boundaries must be set, defined and maintained between mediation and court processes in order to eliminate possibilities for coercion. When education on mediation is offered and terms clarified mixed messages to litigants, the public and general public will be eliminated. Senft and Savage (2003) suggest that if the process is not conducted by court rosters that are neutral, the courts must improve quality control of their programs. From the article ADR in the courts: Progress, Problems and Possibilities, my personal opinion is that ADR techniques can be more accurate and effective in resolving conflicts than litigation. The article has offered insight from the perspectives of both proponents and critics of ADR. However, my opinion is that litigants, judges and attorneys must keep adapting constantly to ADR techniques that are in existence and at the same time devise new ones that address unique needs of legal disputes. It is evident that proponents of ADR did not intend it to undercut or replace the traditional court system and in that context, I believe they can best be used alongside litigation when the parties feel they should explore alternatives. I also believe that ADR options are most appropriate in cases where litigation is clearly alienating and, after all, the litigants are still at liberty to go back to traditional court processes at any juncture of the ADR process. If courts and attorneys encourage ADR, and specifically mediation, as a technique of mutually resolving disputes, then it is critical that the third party assisting the litigants be neutral. Like the article has suggested that education on mediation be offered to litigants and attorneys, I believe it is imperative for the litigants to be made aware that the mediation process will depend on their commitment to solve their disputes. Then, the facilitators should strictly never impose or suggest decisions but only ensure that the litigants keep talking to voluntarily arrive at a solution. Regardless of the critics’ assertions, I believe that it is true that courts are embracing mediation as an ADR because apart from just wanting to do good things, they are also legally obliged to do so. It is not only in the courts’ best interest to ensure that they offer high quality services, but also the general public and nation at large. Therefore, my opinion is that the assertions of the critics should then not be considered merely as such, but should be taken to imply serious concerns because the critics are also stakeholders in the legal and justice systems. If their concerns are addressed, ADR can become the successful process everyone needs. Personally, I would advocate for litigation to be the alternative rather than the norm. References Senft, L. P., & Savage, C. A. (2003). ADR in the courts: Progress, Problems and Possibilities. Dickinson Law Review, 108(1), 333-348. Read More