Dispute Resolution Towards Access to Justice - Essay Example

1a) Effectiveness of Alternative Methods of Dispute Resolution towards Access to Justice Introduction Access to justice has always been a cherished dream for humanity in every age of human civilization. Legal systems were in place in even ancient societies such as Greek and Roman empires. The idea that no society can survive without justice can be traced in all religions, races and demographics. In the last two centuries there has been a rapid rise in human population combined with advancement in technology. As a result businesses have expanded and many new professions have evolved. This scenario has changed the dynamics of legal systems as well. More disputes have started to emerge, more cases are filed in the courts and a need of speedy, economic justice has increased manifold. While the historical methods of resolving the disputes e.g. civil litigation etc. are still very much intact and effective but their limitations have also been highlighted in modern age. This has given rise to the idea of finding alternate methods of dispute resolution or alternate dispute resolution (ADR). In this paper we will look at what is ‘Alternate Dispute Resolution’, what are its types, how it evolved and what is its effectiveness towards access to justice. We will also see if there are any challenges confronting alternate dispute resolution. Types of ADR When a dispute is resolved through non-conventional methods it is knows as alternate dispute resolution. It “can be defined as the resolution of disputes other than rendered by the judicial system”. (Rosa, Santa, 2009) There are many ways in which a dispute can be alternatively resolved but following are the most commonly used ones: Arbitration When the parties to a dispute appoint a neutral referee to hear their dispute and make the decision it is knows as arbitration. The person working as the referee is known as the arbitrator. There can be one or more arbitrator in arbitration. Arbitration is mostly used when there is an arbitration clause in contract between two parties stating that in case of a dispute both parties would go to the arbitrator instead of going through the tradition legal forums. (Lew, Mistelis and Kroll, 2003) Mediation. Mediation is a system to reach a consensus among conflicting parties. In mediation a mediator is appointed with the consent of all parties. The mediator tries to talk to concerned parties both in the presence of each other and alone as well. Mediation, as a process of reaching a decision, falls short of arbitration as the status of mediator is only to facilitate the dialogue between parties and not make a final decision regarding the dispute. (Stitt, Allan, 2004) It is helpful when parties are not in a position to themselves sit together and reach a conclusion. Mini-trial A mini-trial is a procedure enabling the parties to present their cases in front of a third person or jury appointed with the consent of parties. It is an informal court where the parties can reach a decision without going through the motions of real court proceedings. (Keeley, Duffy, 2005) It helps them develop a clear idea about their cases’ worth while still keeping the options of dialogue and settlement open. Mini-trials are normally arranged in corporate disputes. Evolution of Alternate Dispute Resolution Origin of alternate methods of dispute resolution can be found in ancient civilizations. It has been prevailing at domestic level in almost all business communities in the world. Mediations done by elders of markets or homes are clear examples of it. It started to get popular as a proper legal branch in the early twentieth century. After the World War I it started getting popular in Europe and US. Since then various statutes have given it the status of a complete system of accessing justice. Today, it has reached such success levels that cases dealt through Alternative Methods of Dispute Resolution equal roughly one forth of cases heard by Federal court in US. Effectiveness of Alternate Dispute Resolution The rapid increase in cases decided through alternative methods of dispute resolution itself speaks for the success of it as a viable system for access to justice. There are many reasons why it is getting popular. The major reasons for the effectiveness of ADR are following: 1. Speedy Decision Cases take a long time in getting decided through the tradition methods of dispute resolution. In countries like India or Turkey a civil case can sometimes take decades to get resolved. There is an old legal maxim that justice delayed is justice denied. (Gohman v. City of St. Bernard, 1924) Such a long civil litigation denies the actual spirit of access to justice. In cases involving corporate matters time becomes even more important. Imagine a case between two broadcasting companies upon who has the right to broadcast next week’s football match. Such scenario can be best handled through arbitration or mediation. 2. Selection of Neutrals In many cases one of the parties is not comfortable regarding the impartiality of the judge. Sometimes a case involves people of two different countries in which case the foreigner party may be uncomfortable with the process of justice in other country. In such cases ADR again is the best way to access justice. 3. Informality Traditional forms of justice are very formal. By opting for alternative methods of dispute resolution, the parties find themselves in a more informal place where dialogues, negotiations and settlements can take place at any time and any stage of the proceedings. This specially works wonder in the ever changing environment of business dealings. 4. Flexibility Mediation, arbitration and mini-trials are very flexible. They can be carried on at any time and any place. In addition, they are also flexible as to their form. There are no set rules and procedures. In a tradition case a party’s access to speedy justice can be delayed by small matters e.g. deficiency in court fee on a particular paper. (Braithwaite, John, 2005)In ADR no such issues derail the process of law. 5. Confidentiality In many cases parties to the case do not want to get their personal or business information public. A business may not want to disclose its contracts to everyone. A couple may not want their differences to be heard in an open court while going through the negotiations on divorce. In such cases ADR provides a much confidential way to deal with private maters. 6. Economic Traditional methods of dispute resolution are getting more and more costly by every passing year. In US, an average citizen does not possess enough assets to afford a year’s fee of a lawyer. Other expenses involved with the dealing of a case make it much less attractive for a person to go through court cases. Alternate methods of dispute resolution can be extremely low cost. In certain cases, a ADR decision can be made with only a few dollars expense. 7. Finality of Decision Alternate dispute resolution ensures that once a decision has been made by the arbitrator parties abide by it. The arbitration clause prepared at the time of contract can avoid the series of appeals and counter-appeals as found in normal civil litigation process. 8. Adversaries and Competitors Alternate dispute resolution is a viable form of access to justice for people who want to maintain suitable business relations with their competitors and adversaries. When parties go into litigation against each other in a court of law it creates a bad feeling among them which also affects their future business prospects together. ADR saves them from such embarrassment. 9. Suitable for International Disputes In disputes involving parties from different countries, it is hard to decide that which country’s law should be followed. Although there are provisions of law available in this regard but parties prefer to have a mutually decided arbitrator to hear their cases. It also provides them to be able to present their case at a suitable place for all parties. (Bossche, Petervan, 2005) Conclusion Alternate dispute resolution has provided the world with a viable method of solving conflicts while causing fewer complications for the parties. Parties opting for this system are able to get speedy, economic and flexible ways to access justice. This is the reason it has developed so much in the past few decades and it is expected to grow further in the years to come. 1b) Business Law Case-Study Introduction There are many issues which arise in day to day matters of common men but they have specific legal repercussions. Routine acts of a normal person can give rise to contractual obligations, create rights and hold them responsible for those acts. In the following part of the assignment we will have a look at a case-study, identify the factual issues, pin-point the legal questions arising from those factual issues and then advice the concerned party about legal recourse of his actions. We will also see what differences, if any, a slight change in circumstances make on the case. Facts of the Case The facts gathered from the case are as follows: 1. Andy lost her dog named Cassey; 2. Andy advertised reward money for finding the dog; 3. The advertisement was published in a local news paper on Monday morning; 4. Stan saw the dog attacking his sheep and captured it on Tuesday; 5. Bloom saw the advertisement on Wednesday; 6. Bloom bought special equipment to find the missing dog; 7. Andy put a notice in a local shop saying the reward was no longer available on Thursday; 8. Stan brought the dog to town on Friday; 9. Stan was ignorant of any reward on finding the dog until he brought it to town; 10. Stan claimed reward from Andy on finding about reward on Friday; Legal Issues in the Case Legal issues arising from the above facts are as follows: 1. Did Andy’s newspaper advertisement create a contract between Andy and finder of the dog? 2. Did Andy’s revocation of advertisement end any contract between him and finder of the dog? 3. Was a notice in local shop sufficient to revoke an announcement made in local newspaper? 4. Is Bloom entitled to any compensation for the money he spent on buying special equipment to find dog? 5. Does the fact that Stan was ignorant of any compensation when he captured the dog makes any difference in the eyes of law? 6. Does the fact that Stan captured the dog before Andy’s revocation notice makes any difference in the eyes of law? 7. Does the fact that Stan brought the dog to Andy after Andy’s notice of revocation makes any difference in the eyes of law? 8. Is Stan entitled to receive compensation? Advice for Andy in this case There are many legal questions involved with the case but we will concentrate on those where Andy has a stake. In this regard he has two fronts to defend himself: Stan v Andy This is a generally accepted principle of law that the finder of a lost good has a better right over it than everyone else except the true owner. (Law, 1998) When Stan caught the dog he developed that right over it. As for the reward, Stan caught the dog before Andy’s revocation of the offer of reward but he did not bring it to Andy. He only brought it after Andy had revoked his offer. There is one situation which goes against Andy though; he advertised his add in newspaper but revocation notice only appeared in a local shop. Andy can be well advised to defend his case on two grounds: 1. Stan brought the dog after offer had been revoked. 2. Advertisement came in local news-paper so revocation add in local shop fully suffices the alternative. Andy must not raise following issue: 1. That Stan does not have a right to get reward because he did not know about it. Such stance can cause his stance a major drawback because courts have often ruled that finder of lost goods deserves reward even if he was ignorant of the reward at the time of finding it. (Irish Law Times, 1885) Bloom v Andy Bloom is not entitled to receive any compensation in the eyes of law because his decision to but equipment was a personal choice and Andy did not advice so. Bloom did not find the dog either, making him a non-party to the whole issue. Change in Legal scenario if Stan is the younger brother of Andy 1. Does the fact that Andy and Stan are brothers makes any obligation on them for being able to have better communication than ordinary people? 2. Does such relationship make any difference for contractual obligations between them? Advice for Andy in such case If Stan is the brother of Andy then it is expected that he must have known about Andy’s dog because it belongs to a rare breed. In such case Stan can claim that Andy revoked his offer after knowing that dog has been found by Stan but onus of such proof would be on Stan. Similarly, it is expected that Stan must have known about something Andy was advertising for. Andy can be advised to raise the issue that if Satan knew about his dog then he should have informed him on the day he found it. His delay constitutes his ignorance and thus proves that there is minimal communication between brothers. In such a way Andy can deny his knowledge of Stan finding the dog as well. Change in Legal Scenario if Cassey dies before it could be returned to Andy 1. Does a dead pet stands equivalent to an alive pet in the eyes of law? 2. Does change in form or substance (bringing back a dead dog instead of alive) of the property concerned with the contract, makes any difference to the contract? Advice for Andy in such case Andy’s advertisement for the reward was for his pet. If Cassey dies before reaching Andy then it does not constitute ‘bringing back the pet’ and hence Andy is not liable to pay any amount of reward irrespective of whether he revoked his offer or not. Law requires an agreement regarding a particular good or commodity to be fulfilled in same substance. (Law Journals Reports, 1923) A dead dog does not provide an alternative for a live one. It must be noted that live animals are considered property of the owner in the eyes of law and are tradable just like commodities. Conclusion The above stated case-study highlights certain areas of law concerning day to day contractual obligations and their redress. It also highlights how to apply legal issues over factual data of a particular case. Work Cited Rosa, Santa, retrieved from California Business Development, LLC on December 3, 2009 from http://www.californiabusinessdevelopment.net/lawyer-attorney-1255811.html Lew, Mistelis and Kroll, Comparative International Commercial Arbitration, (2003), Page 1 Stitt, Allan, Mediation: A Practical Guide, (2004), Page 1 Keeley, Duffy, Handling Fidelity Bond Claims, (2005), Page 588 Gohman v. City of St. Bernard, 111 Ohio St. 726, 737 (1924) Braithwaite, John, Markets in Vice, Markets in Virtue, (2005), Page 75 Bossche, Petervan, The Law and Policy of the World Trade Organization: Text, Cases and Materials (2005), Page 175 West’s Encyclopedia of American Law, (1998), Page 198 The Irish Law Times and Solicitors’ Journals, (1885), Page 136 The Law Journal Reports, (1923), Page 320 Read More