Civil Dispute Resolution: Methods and Results - Essay Example

As in most legal systems, litigation in Australia has been used as a way of resolving disputes that cannot be readily settled by agreement. However, this image has been gradually shattered by introduction of alternative dispute resolution methods (ADR). The number of civil disputes being resolved in judicial decision is reducing due to application of various methods of dispute resolution including those that has led to litigation. As a result, it is the policy of the government to improve ADRs in order to facilitate earlier as well as greater use of them1. Reforms in Australian legal system have been driven by crowded court lists, the traditional adversary procedure which is associated with increased costs as well as promoting hostility, lacking involvement of senior executive during early stages of the resolution of dispute, and expectations that judge can solve all issues. Thus, such reforms were driven by the need for cheaper, speedier, and flexible resolution of dispute2. ADR has been defined as an umbrella term for processes instead of judicial determination where there is an involvement of an impartial person in a dispute to assist in resolving issues between disputing parties3. Some of ADR methods include mediation, negotiation, and conciliation which basically focus on seeking for resolution in order to reach to an agreement between parties. Other methods such as arbitration may call for a binding determination by a third party. ADR techniques may also be used in determination of either some or all factual and legal issues in dispute. In cases that are subject of litigation in courts, ADR may be used by agreement between parties, by direction, suggestion or order of the court. The most important factors in ADR is that they are essentially non-coercive, voluntary and are designed to arrive at a negotiated dispute settlement through an assistant of a neutral third party with an expert relevant industry background4. The method of dispute resolution depends on the result that you are seeking. For instance, in Australian courts, various factors are very essential such as the performance, the quality of agreement, the empowerment of the participants, the costs as well as time savings. Such factors call for ADR5. The Supreme Court has been relying much on ADR on case management especially mediation due to saving of time, cost and empowerment of the participants6. The magistrates’ and country courts also ascertained that mediation has been widely used in settlement of disputes where more than 20% of building division cases are settled through mediation, more than 10% defamation division cases were settled after mediation while more than 60% medical division cases were settled at mediation7. At magistrates’ courts, more than 40% defended civil claims were finalised through mediation, and 26% through arbitration. Thus, the disputes that were resolved through ADR amounted to approximately 70%8. Commercial dispute resolution in Australia has been heavily relying on ADRs in settlement of theory disputes. This is because time and cost are very essential in business and the parties feel that the courts takes too long and costs much to solving such disputes9. As a result, due to their desire for settlements that save time, money and make them fully participate, they prefer to settle disputes through ADRs10. In the Supreme Court, commercial division prefer use of arbitration as one of the most cost effective way of solving commercial disputes11. Attractions of ADR in commercial dispute resolution flow from saving of legal costs, time, and commercial resources which ADR can produce from its preservations of continuing commercial relations, its confidentiality, and the assistance of a neutral third party12. Commercial litigation has been an issue as it have received a lot of criticism in regard to technicality, unduly adversarial procedures and delay. As a result, parties have been employing arbitration in order to address their issues especially on time and cost. First, with delays in litigation, the arbitration agreements have proved to be more efficient13. Secondly, in order to prevent more delays due to litigation, the court such as New South Wales refer matters to arbitration. Thirdly, lengthy and factually complex cases such as construction cases take too long through litigation making the judges too hard-pressed and as a result, the cases may not be completed at the right time. Finally, there are increasing numbers of retired judges who serves as the best experts in arbitrations leading to speedy solving of commercial cases through ADRs. This has increased the effectiveness of use of ADRs in solving of commercial cases14. In addition to reduction of time, there are also reduced costs as a result of the reduction of the procedures previously used during litigation15. In general, parties that employ ADRs are attracted to various benefits within their disputes. For those with limited financial means, ADRs allows costs and time savings which allows them to access justice that they could have got using costly and time consuming litigation16. For disputes that need to be resolved faster, ADRs are more effective as compared lengthy legal proceedings17. Time and money as well as participation are very essential especially in commercial cases where future business loses due to delay, lawyers’ and experts’ fees can be saved and participants also find more time in order to explain their side of their stories18. Where the issue of flexibility, creativeness and cooperation are essential, ADRs are effective as parties make choice of the process that seem best for them such as deciding on who to resolve their dispute, and work together to an agreement that makes sense to them as well as maintain their long term relationship especially in business19. Unlike the court system where everything is disclosed to the public, use of ADR ensure confidential which is an essential factor in business secrets leading to potential for high degree of satisfaction20. However, there are factors that may make parties prefer litigation other rather than ADR. For instance, when it is a public interest case or a party wishes to have a legal precedent, judicial degree becomes more appropriate for weighty issues such as dissolution of marriage or issues in respect to Wills21. In such cases, parties require court protections, to include the right decision made by the jury or the judge based on admissible evidence as well as appeal rights or the where the right to reasons for decision is required. This makes litigation important when parties require enforceability22. In other issues, when one party feels that the is reluctance for the other party to disclose information, lack of willingness to participate, when a matter fails to be solved in ADR, in criminal matters where it is impossible to negotiate in respect to related punishment or conviction, different moral view between the parties leading to different firmly held beliefs as well as where the parties feel that legal procedure is the only fair process23. Some cases can be better if solved through litigation based on the reason of framework or subject matter. For instance, disputes between multiple parties where cooperation among them is very low24. There are cases that are susceptible to early resolution by use of an expert judge where such resolution would be very critical of the dispute at an early stage. There are cases where causes of action may be out of ADRs, urgent relief is required. Such cases are more effective when solved through litigation and would lead to enormous savings25. This shows that the method of dispute resolution is largely based on the result that you are seeking. Technology as a way of resolution of disputes should be considered but for specific disputes. This is realistic because there are conditions where face to face dissolution of disputes could not be applicable due to issues such as distance and cost26. Use of technology in dispute resolution usually regarded as on-line dispute resolution (ODR) is applicable using the following processes: automated negotiation, mock juries, on-line mediation, and on-line arbitration among others27. However, dispute resolution using technology is applicable in disputes related to on-line transactions, for instance e-commerce or domain names. Such processes are effective because forms of communication may be prevented by various factors such as geography and disability among others28. The issue of convenience and cost savings is essential in use of technology as it can lead to a substantial savings as compared to face to face dispute resolution. For individuals who are far apart and the costs are very high, on-line dispute resolution such as cyber-mediation becomes the most feasible way in solving disputes related to electronic commerce. In addition, the key benefit to using cyber-mediation in dispute resolution is that the method with avoid the issue regarding to whether the court has jurisdiction over the dispute under resolution. This based on the fact that the parties can after the parties bind themselves to resolution through agreement, the issues of litigation. Technology allows for transmission, searching and modification of information29. However, compared to face to face dispute resolution, there are various issues associated with dispute resolution using technology which are based on legality, the global nature of telecommunication as well as the nature of digital data it may be difficult to determine ADR processes, the sovereignty applied, and in turn, legal implications, the enforceability of outcomes and status of communication30. For instance, in case of arbitration, there are various questions that arise which include the place of arbitration or the existence of the place in any even given that the arbitrator is nowhere. The potential risks for ADR providers using technology and the parties is that action may be brought everywhere in the world against them in a court. With little case law which has a direct relevance to on-line ADR, there has been publication of material over the internet which has led to important jurisdiction issues for instance Macquarie v Berg31 and Gutnick v Dow Jones32. Confidentiality concern is also creating many legal challenges such as authentication of data due to infinite manipulation of digital data. While face to face mediation does not lead to creation of physical record, technology leads to creation of electronic record which could potential expose the party through printing out as well as distributing communications easy without other party’s knowledge. As a result, this leads to hindering of development of cyber-mediation that is open and honest33. As compared to face to face resolution, use of technology has no ability to substitute the ability of conversations in face to face which promoted the values of mediation. In an online environment, mediation cannot be easily reproduced given that cyberspace is not a mirror image in regard to the physical world. For instance, cyber-mediation cannot lead to fully resolving of specific types of disputes. This is because, for use of technology to work properly, the parties would have been required to initially undertaken discussions, have agreed to basic facts in regard to the dispute and have determined also that one of the parties is responsible for the damages associated with the disputes34. Based on effectiveness of interpersonal communication, face to face communication provides interpersonal communication to the fullest degree. This is based on the fact that the parties under dispute are physically present before the mediator while use of technology is based on electronic distance where mediation involves indirect interpersonal contact. As a result, use of technology act as a barrier to understanding the emotions and feelings which are very essential in mediation35. Use of technology in dispute resolution also poses as a potential barrier in accessibility as compared to face to face. For those limited to access of internet, for those finding it uncomfortable or inconvenient, resolving of disputes using internet may pose a big problem to them36. Thus, technology should be considered for specific disputes especially those related to on-line such as e-commerce disputes. Conclusion Given various methods of dispute resolution, evidence shows that the method you use is determined by the results you are seeking. However, there are methods that cannot be applied according the nature of disputes where the disputes that are related to unwillingness to cooperate, crime, differing firmly held beliefs among others are usually solved through litigation. Factors such as saving costs and time, and participation are crucial in commercial cases and use of litigation is considered unsuitable in such cases. It is important to consider technology, but for resolution of specific disputes. Use of technology is important for solving disputes related to on-line such as e-commerce. However, compared to face to face dispute resolution, use of technology is faced by crucial challenges such as confidentiality, intrapersonal communication, and legal issues among other issues. Bibliography Aibinu, A. (2006). The relationship between distribution of control, fairness and potential for dispute in the claims handling process, Construction Management and Economics, 24(1), 45-54. Al-Tabtabai, H. and Thomas, V. (2004). Negotiation and resolution of conflict using AHP: an application to project management, Engineering, Construction and Architectural Management, 11(2), 90-100. Astor, H. and Chinkin, C. M. (2002). Dispute resolution in Australia 2nd ed, LexisNexis Butterworths Sydney. Cornelius, H. & Faire, S. (2003) Everyone can win: responding to conflict constructively. 2d ed.Simon & Schuster Australia. Friedman, G. H. (1997). Alternative Dispute Resolution and Emerging Online Technologies: Challenges and Opportunities, HASTINGS COMM. & ENT Law Journal, 695, 712 Hollands, D. (1996). Choosing a dispute resolution process, http://www.neutral.co.nz/process.htm Jones, D. (1998). Dispute resolution options - An overview, BSFA Seminar Dispute Resolution - Getting to Yes or (or No), Sydney Katsh E, Rifkin J & Gaitenby A (2000). E-Commerce, E-Disputes and E-Dispute Resolution: In the Shadow of the e-Bay Law, Ohio State Journal of Dispute Resolution Spring. Kessedjian C & Cahn S (1998). Dispute Resolution On-line, International Lawyer 32(4), 977-990 King, D. (2000). Internet Mediation – a summary, Australian Dispute Resolution Journal, 182 Love, P., Tse, R. and Edwards, D. (2005). Time-cost relationships in Australian building construction projects, Journal of Construction Engineering and Management, 131(2), 187-194 Packbier, Y. & Pratt, E. (2001). Mediation for the Information Technology Industry", The ADR Bulletin, 4(5), 72-76. Steele, J., &Murray, M. (2004). Creating, supporting and sustaining a culture of innovation, Engineering, Construction and Architectural Management, 11(5), 316-322. Steen, J. (1994). Five steps to resolving construction disputes- without litigation, Journal of Management in Engineering, 10(4), 19-21. Spencer, D., & Hardy, S. (2009). Dispute resolution in Australia: Cases, commentary and materials (2nd ed.). Sydney: Lawbook. Spencer & Altobelli Dispute Resolution in Australia: Cases, Commentary and Materials, Sydney: Lawbook. Read More