Alternative Dispute Resolution - Research Paper Example

Alternative Dispute Resolution Introduction Alternative Dispute Resolution (ADR) refers to all the alternative mechanisms or techniques by which individuals and organizations resolve legal issues or disputes without going to a court of law. ADRs often involve a neutral third party who mediates or negotiates. The role of the third independent party is thus to try and assist in the achievement of an amicable solution between or among the dispute parties (Lynch, P. 213). Additionally, in cases where a conflict may not be completely solved, the role of the independent third party would be to narrow the area of conflict or to reduce the severity of the conflicts. In clearer terms, ADR refers to the processes of solving disputes outside the judicial process or formal litigation. In fact, the judicial system/process is currently encouraging and requiring conflicting parties to utilize the Alternative Dispute Resolution processes, particularly mediation, prior to taking such cases before a court of law. There are four other main types of Alternative Dispute Resolution namely negotiation, mediation, arbitration, and collaborative law (Lynch, P. 213). In fact, conciliation is also considered a type of Alternative Dispute Resolution. Except in negotiation, all the other categories of Alternative Dispute Resolution involve the presence of a neutral person who provides fair opinions while facilitating or making decision in ADR processes. However, the collaborative law processes such as collaborative divorce requires both parties to have counsels who are experts at following the details of the contracts or terms involved such issues. Among the disputes or conflicts in which ADR techniques have been particularly useful include family matters such as divorce, professional liability disputes, insurance issues/disputes, and personal injury situations. There are several advantages for which the use of Alternative Dispute Resolution has become prominent in recent times. These advantages include more efficiency, cost-effectiveness, and greater satisfaction for all parties involved. In fact, great deals of civil cases such as marital dissolutions have been settled using Alternative Dispute Resolution techniques (Lynch, P. 213). Due to the recognized effectiveness of ADR as a tool for dispute resolution, judicial systems world over have adopted the practice of providing conflicting parties and their lawyers with information about and the option of ADR, more so in civil cases. This paper explores the concept of Alternative Dispute Resolution with regard to its advantages, disadvantages, categories, structures, and resolution among other aspects of ADR. Advantages and Disadvantages of Alternative Dispute Resolution The current trend of increased usage of Alternative Dispute Resolution techniques stems from the many advantages that arise from their use. The first among the advantages of ADR is the fact that far less time is consumed in solving disputes in cases where ADR, rather than litigation is applied. ADR also usually costs less in monitory terms compared to litigations. Moreover, ADR techniques such as arbitration have more flexibility in the choice and the application of the relevant rules to their disputes. For instance, one may choose to apply industrial standards, religious laws, foreign/international laws, domestic laws, and any unique set of standards/rules for ADR processes such as negotiation, mediation, conciliation, or arbitration. Importantly, the disputing parties are in a position to use the services of experts in the relevant fields. The other advantage of ADR over litigation is that more time is also wasted in litigation since judges and juries have to be educated on the technical terms and aspects of cases that involve complicated and technical issues that are not properly understood by laymen. In fact, it is only after this kind of education that judges and juries may make informed and fair decisions. Therefore, in ADR, the parties involved in a conflict have the privilege of hiring experts who will spend less time analysing the facts of the case, leading to a faster solution. There are, however, certain disadvantages that come with the use of ADR in resolving conflicts among business organizations and individuals. For instance, arbitration, as an ADR technique is only suitable for cases involving money. It thus becomes difficult for arbitrators to give orders to one or both of the parties to do or refrain from doing something. In addition, arbitrators may not change the ownership of a property. The second disadvantage of ADR is that the safeguards that the parties involved may have enjoyed in litigation may not be provided for under ADR processes. These privileges include the liberal discovery rules, mostly used in the U.S. courts, make it rather easy to get evidence from the other party in a lawsuit. Third, in ADR, it is quite difficult to have a judicial review of the decisions made by arbitrators, mediators, or negotiators. In fact, while large ADR service providers may have room and processes for judicial reviews and internal appeals against decisions, most ADR decisions are often reviewed by courts, albeit limitedly (Zeno & Claudiu, P. 53). That is, the law courts only come in whenever there are doubts on the validity of the initial ADR process. In other words, should the consent of one of the parties be obtained by coercion, threats, or use of force, such decisions cannot be enforced by the law as it would be termed unprofessional and unfair (Zeno & Claudiu, P. 67). In addition, the fact that a negotiator, mediator, or arbitrator has made a decision that the court may not have made makes such a decision unenforceable. Furthermore, it may be possible for a court to overturn ADR decisions if it believes the scope of the ADR agreement does not cover the issues decided during the ADR process. From the above advantages and disadvantages, it is quite apparent that conflicting parties and their representatives consider all these pros and cons before settling on an ADR technique. Types of Alternative Dispute Resolution There are a number of techniques that organizations and individuals may exploit as ADR vehicles to solve disputes outside the justice system. Arbitration is one of the major categories of ADR worth discussing given its widespread use in resolving disputes (Schwartz, P. 212). Being a simplified version of trial because of the limited discovery, arbitration relies on simplified rules of evidence. In most cases, arbitration is always headed by an arbitral panel, mandated to make the final decisions. The two methods of creating this panel are by both conflicting parties agreeing on the arbitrator or each side appointing an arbitrator. In the latter case, the two arbitrators are then required to elect a third one. Since arbitration panels often meet for a few hours a day, arbitrations may last for days or weeks depending on the circumstance of the case at hand. The function of the panel, once established, is to deliberate on all the matters arising in a case and issue a written decision or arbitral award (Schwartz, P. 212). It should however be noted that the opinions of the members of such as panel are not for public records. Examples of areas in which arbitration has been successfully been used are labor market, the construction industry, business disputes, and securities regulation. Negotiation Negotiation is the other commonly applied technique of Alternative Dispute Resolution. An important aspect of negotiation is its structuring, which must promote goodwill and openness among the parties involved. In fact, the services of skilled negotiators with well-thought strategies should be sought. In addition, these negotiators are always well prepared, self-confident, and they structure negotiations in a manner that ensures they are constantly in control (Peppet & Sherman, P. 102). Structuring a negotiation should however aim at creating an environment that would foster the achievement of an amicable solution to the disputed issue. First, the issue being negotiated must be established, the right information gathered, and solutions built by the parties involved. To agree on the issues to be discussed, it should be clear what needs to be discussed or agreed upon and those to be involved and what their roles are. Important in these considerations are the timescales towards which the parties and their negotiators would be working and the major issues to be agreed upon within these timescales. To further create a favorable environment, hurried negotiations should be avoided. In fact, it is more productive in negotiations if one used more time to ask questions and search for alternatives than to force solutions on others. The parties should also gain each others’ commitment as early in the negotiations as possible (Peppet & Sherman, P. 75). Gathering information is the other element of negotiation that results in a favorable environment for parties and their negotiators. The types of information that must be availed include the information one party is willing to give to the other, the information the other side is willing to give, and the information that either side is unwilling to give. It is thus imperative that a party decide beforehand the kind and amount of information it is willing and unwilling to give (Peppet & Sherman, P. 99). This scenario will set the climate for the negotiation and will affect the level of trust between the parties. The process of beginning to build a solution is also core to the creation of an enabling negotiation environment through actions such as putting forward a proposal, or opening bid. Online-Dispute Resolution A type of ADR that has shot to prominence in recent times is the Online-Dispute Resolution. Although different types of providers have taken to the business of arbitrating and negotiating on behalf of their clients, the processes for filing complaints are almost similar. For instance, in most procedures in filing Online-ADR requests, the first step is to select the dispute type followed by the pressing of a button to submit the selection after which one cannot edit the dispute type selected. However, there is always a print/return to case button for any client who would want to edit the type of dispute later. The selected dispute is then assigned a case number and the client chooses the language to be used in administrative proceedings during the case. After confirming that he/she is preparing the complaint as an external authorized representative on behalf of a complainant or not, the client enters the registrar(s) and disputed domain(s) names. The registrar in this case could be a natural person or a legal entity. Among the details to be filled include full name, title, email address, physical address, mailing address, country, telephone, and fax. The client then selects the type of panel preferred, taking into account the varying fees, which depend on the size of the panel chosen. The client then chooses the candidate(s) preferred to be in the panel. The fee is then paid by means such as credit/debit card (the payment is made via the on-line payment portal), payment by bank transfer (the paid amount is deposited on bank account), and payment by check. Conclusion For quite a long time, litigation was the commonly used method of dispute resolution, not only for civil cases but also disputes of commercial nature. However, recent times have realized increased use of other techniques such as arbitration, negotiation, conciliation, and mediation, collectively referred to as Alternative Dispute Resolution (ADR) in resolving disputes. Among the advantages for which ADR techniques are favored include their being fast, time-saving, and less expensive compared to litigation. The technological advances that have occurred in recent times have even resulted in another type of ADR referred to as Online-ADR in which one has to fill certain on-line forms with all the necessary details that the service providers and mediators, negotiators, or arbitrators may require in their deliberations. Works Cited Lynch, J. ADR and Beyond: A Systems Approach to Conflict Management. 2001. Negotiation Journal, 17(3), 213. Peppet, S. R., and Sherman, E. F. Mediation and Other Non-Binding ADR Processes (University Casebooks), Third Edition. 2006. Foundation Press. Schwartz, D. S. Mandatory Arbitration and Fairness. 2010. 84 Notre Dame Literature Review. Zeno, S., and Claudiu, I. Alternative Ways of Solving Conflicts (ADR). 2001. Bucharest: Univeristara Publishing House. Read More