Dispute Resolution: Methods and Results - Essay Example

TITLE: DESPUTE RESOLUTION: METHODS AND RESULTS NAME: INSTITUTION: DESPUTE RESOLUTION: METHODS AND RESULTS Introduction A dispute can simply be defined as a disagreement between two or more people. The disagreement could be as a result of differing in opinions, misunderstandings, beliefs, priorities, values, goals or general view of life. In many instances, disputes harm or destroy relationships thereby pushing those involved to seek solutions either in the courts or through other means of alternative dispute resolution (ADR) and traditional court systems. Ideally, it would be better to prevent or avoid disputes. However, disputes have proved to be inevitable in society. If a dispute occurs, the following processes can be used to address it; mediation, ombudsman, negotiation, conciliation and arbitration. In recent times, dispute resolution has undergone a considered analysis of its role in society at the community, commercial, political and legal levels. In addition to this is its increasing relevance to, and its impact on other disciplines such as counselling, psychology and law (Spencer, D., & Hardy, S. 2009). "The role of the judge presiding in a state-funded institution like a court has to be fundamentally rethought. So, too, the role of lawyers." Ackland, R Yes, it has been agreed that the role of the judge and that of the lawyers in a state-funded institution like a court has to be fundamentally revamped. The essay will begin by defining the roles of a judge and a lawyer; this shall be followed by stating my position on the subject matter and an elaborate discussion and examples in support of my argument. In the discussion alternative dispute resolution system will be revisited, giving examples of other better ways of resolving disputes as opposed to the legal courts. In every aspect of life there are two sides to every coin, so we cannot dispute the importance of the court system in resolving disputes. The conclusion merges the merits and demerits of the legal court system and the alternative dispute resolution system, with bias towards the merits of the later. Basically, the role of a judge is to conduct court proceedings by properly interpreting the meaning, significance and implications of the law. Judges are expected to be impartial, to show understanding and compassion for the people appearing before them with a case or dispute. For the judge to be fair, he/she must ensure that the evidence brought in court is enough to support a case beyond any reasonable doubt. It is important to note that judges do not always work alone; instead they work in collaboration with lawyers or attorneys. Powers of the judges are vested upon them by the law, entrusting them with ensuring that justice is impartially served to all who seek it (Catalaw, 2012 pg.2). However, many a times people tend to forget that judges are human and can make mistakes too, either knowingly or unknowingly. There have been various cases portraying misuse of power by judges for example the airing of a horrifying real life documentary titled “On the Case” which is about crimes committed in Australia. It was produced by an American lady called Paula Zahn. She featured an Australian Judge in one of the Australian regions who planned and ‘successfully’ managed to kill his wife of over 15 years, with whom he had three children. In summary, the man took his wife out for dinner, as they drove out of the restaurant, he intentionally drove along a deserted road, stopped the car near a pond, shot the wife dead, threw the gun in the pond then called the police lying that they have been attacked and his wife shot. Attempts by the police to plead with him to wait for an ambulance to arrive at the scene were futile, as he insisted and drove the wife to hospital, once again intentionally crashing the car at the walls of the hospital to conceal evidence by diverting attention. Investigations later revealed that the judge was broke and wanted to benefit from the life insurance of the wife (Paula, 20009). Meanwhile, he was cheating on his wife with a lady who contributed to his brokenness. A respectable member of society who swore to uphold justice killing his wife in such a manner? These could be one of the reasons Ackland, R had in mind when he made the statement “"The role of the judge presiding in a state-funded institution like a court has to be fundamentally reconsidered. So, too, the role of lawyers." Basically, a lawyer is a professional of law who makes the legal system work by either representing a client in court of law or offering legal advice to a client. Lawyers are normally hired by clients because they understand the law better than non lawyers. The roles of lawyers vary from one legal system to another, so does the nature of their practise. There are criminal defence lawyers, corporate lawyers, constitutional lawyers, human rights lawyers, lawyers for government agencies among others (Gamos, 2012 pg56). In case a defendant cannot afford to hire a lawyer, it’s the duty of the judge to appoint a state-paid lawyer for them. In an ideal democratic society, lawyers are expected to uphold the rule of law with no fear or favour, irrespective of one’s position in the society. In reality, does this happen in many societies? In regards to the above statement by Ackland. R that “"The role of the judge presiding in a state-funded institution like a court has to be fundamentally rethought. So, too, the role of lawyers." It could be interpreted in various ways. One interpretation is that a number of gaps have been identified in the way the judges and the lawyers carry out their jobs. This could mean that they either have too much powers (abuse these powers in some instances) or that they are not as impartial as they are expected to be, hence biasness in delivery of justice. The end-result normally works against the so called “common man’ who is less privileged and voiceless in the society. For instance, if a case comes to court involving the elite in society (Member of Parliament, Doctor, Judge, and Engineer among others) and a peasant, the elite man will afford to hire a expensive lawyer to represent him in court whereas the peasant will not. The hired lawyer will therefore do a more thorough job, commensurate with his hefty pay unlike the state lawyer appointed to the peasant who has less motivation. In some instances, the rich bribe the judges to favour them. This makes a mockery of the justice system, making it appear like goods on auction to be bought sold to the highest bidder. In the end, the poor or less privileged continue to suffer in silence. It is for this reason that we find the relevance in Auckland, R’s statement, in addition to being in favour of alternative dispute resolution and other traditional court system for conflict resolution. I do acknowledge that Courts play a very important role in helping people access justice. However, not everyone who goes to court gets justice. This is prompting some people to seek alternative dispute resolution methods. Conflict resolution involves emotions and judges are human beings with emotions too. Apart from being guided by the law when making rulings, a judge can be influenced by his personal emotions towards a case. For example, when a child appears in court in a defilement case, emotions may run high and the ruling made in favour of the child even when the accused may be mistakenly identified. Cases have been reported of people who have ended up in jail due to wrongful accusations all over the world. Some people get released from jail after spending almost half of their life time behind bars. When this happens, whose fault is it? In addition, the courts do not offer services such as counselling or even listen to the reasons that may have prompted a person to commit a certain crime (Institute for Dispute Resolution, 2012 pg. 8). The strength in these services is that lessons can be learnt to avoid future mistakes and the root cause of the problem addressed. On the other hand, alternative dispute resolution or traditional court systems offer much more than just reading a verdict and sentencing offenders. Alternative Dispute Resolution (ADR) This is a situation where a third person offers professional and independent assistance to reach a solution that is acceptable to everyone involved. ADR offers many benefits such as the flexibility of allowing the people involved to have a bigger say about the outcome of their dispute (The Hon. Nicola Roxon in “Your Guide to Dispute Resolution”, 2012). ADR is also informal, it’s cheaper, it offers privacy and confidentiality, the mediator is chosen by those in dispute (unlike in the courts where judges are either elected or appointed by the state) and most importantly, when ADR is used, the people involved can learn new skills regarding prevention of further disputes or how to address a dispute promptly in the future before things get worse. This method can consider second chances for offenders after reconciling the warring parties. This becomes beneficial especially in instances where the offender is a soul breadwinner for his family or has young children to take care of (National Alternative Dispute Resolution Advisory Council, 2012 (NADRAC). Traditional court systems are informal courts organised by communities to resolve disputes among themselves. Normally, their aim is to promote peace and order in the society as well as uphold certain values, right from the households. They are usually headed by the elderly members of society who are viewed as wise from experience gathered over their life time. It is accepted that, the best part of these kind of court system is that all those in attendance tend to know each other well since they live together in that community. This increases chances of fairness in judgement and free expression from the warring factions. Most disputes at community level are domestic in nature or involve relatives. For example, when a husband becomes irresponsible and engages in alcoholism thereby failing to provide for his children, the wife can report to the village elders. The elders then call a meeting where both the accused and the accuser are expected to be present for the hearing of the case. Views of both parties are heard at the traditional court; elders give their verdict (more like the jury in formal court systems). Deliberations are done with the sole purpose of re-uniting the family and giving the husband a chance to rectify his habits, followed by warnings of the repercussions if he fails to obey the orders given by the elders. Importance of the court system to resolve disputes Despite the fact that there is overwhelmingly strong in support in favour of Alternative Dispute Resolution, it goes without saying that the court system is necessary to resolve disputes in some instances. For example when a dispute involves huge populations with diverse opinions, such as the government verses the citizens. The courts will follow the rule of law which is likely to be respected by all the warring factions unlike the alternative methods where all parties involved in dispute would like to be ‘appeased’ by the outcome of the resolution i.e Win-Win situation. Reaching a win-win situation is likely to take more time, lots of negotiations and lobbying. During this period, more damage could be done or the situation could deteriorate further, depending on the nature of the dispute. Other examples is when a situation is very volatile and those in dispute unwilling to see each other face to face, such as when a wife decides to file for a divorce against the wish of the husband, she goes further to leave their matrimonial home and the husband continue to threaten her. Because ADR requires those involved in the conflict to appear in person and face each other as the arbitrators or mediators listen to both views and moderate the resolution process, such a case is better off in courts where a lawyer can represent the accused even in absentia and a ruling made. Because the courts have powers to make rulings, the verdict will have to be accepted and adhered to by all parties, even if they do not agree with it. In order to avert the threats, a restraining order can be given by the courts and this could save a life. Conclusion Disputes between people are an inevitable part of life. This is due to varied opinions, values, malice, corruption, greed, selfishness, and misunderstanding and in some instances scramble for resources (Spencer and Hardy, 2009). When a dispute occurs, there is always an accused and the accuser. In cases where the accused and the accuser are unable to resolve their dispute, there is always need to seek the assistance of a third party to help put the issue to rest. This can be through the courts where a lawyer represents a client before a judge or through Alternative Dispute Resolution such as arbitration, mediation, negotiation or traditional court systems. The argument is that both the legal court system and the alternative systems are important even though the alternative systems have more benefits and are friendlier to the accused and the accuser. This is because whereas the legal courts are guided by the law, the alternative systems tend to have a more human approach, resulting in the satisfaction of both parties, commonly known as a win-win situation. On the other hand, it is a common feeling that the legal system is riddled with bias administration of justice, often at the expense of the less privileged in society. References 1. Spencer, D., & Hardy, S. (2009). Dispute resolution in Australia: Cases, commentary and materials (2nd ed.). Sydney: Lawbook. 2. Your Guide to dispute resolution, 2012. Retrieved online on 14/11/2012 from http://www.nadrac.gov.au/ 3. What does a judge do? Retrieved on 14/11/2012 from http://www.wisegeek.com/what-does-a-judge-do.htm 4. Hieros Gamos: Alternative Dispute Resolution. Retrieved on 13/11/2012 from http://www.hg.org/adr.html 5. Catalaw: Alternative Dispute Resolution. Retrieved on 14/11/2012 from http://www.catalaw.com/topics/ADR.shtm 6. Institute for Dispute Resolution (University of Victoria, Canada). Retrieved on 13/11/2012 from http://dispute.resolution.uvic.ca/ 7. On the Case with Paula Zahn (2009) Session 2 Videos: Investigation Discovery 8. Program on Negotiation at Harvard Law School. Retrieved on 14/11/2012 from /+ttp://www.pon.harvard.edu/ Read More