Alternative Dispute Resolution - Case Study Example

Alternative Dispute Resolution Introduction There are many situations that need to be resolved or settled to be clarified. However, most people thinkthat in resolving an issue or a dispute requires devotion of too much time and money, both of which they cannot afford. So, they let the issue pass them by untouched, not discussed and not settled. They think that it is better to let the issue be forgotten as long as they don’t have to bring out something. But what they do not know is that by letting an issue be unsettled, they let others deprive them of what is rightfully theirs. And usually, it is their “right” that is deprived when an issue is left hanging in midair. This is one of the reasons why violation of rights, including prejudice and discrimination, still exist despite the enforcement of many laws against it and the presence of policemen. People, especially those who have less in life, become hopeless and let others deprive them of what is rightfully theirs because they think they can’t afford the cost of justice. What they might be forgetting is that justice is priceless. What could be costly is the process of getting justice. However, what others may not know is that settling a dispute or coming up with a resolution regarding an issue does not always need to be expensive or to take too much time. It is important to know, especially to those who treasure their rights very much or to those whose rights have been violated, that there are numerous way to settle a dispute. Alternative Dispute Resolution The commonly known way of settling an issue, of course, is through litigation or court process. Here, a judge or jury makes the decision. Procedures before coming up with a decision is and should be strictly complied such as submitting documents that will serve as evidence, appearing before the judge, undergoing preliminary investigation, presenting witnesses, testifying under oath, and many others. Non-compliance with the legal procedure could lead to the dismissal of the case. Although this method of settling a dispute between the complainant and the respondent is the most popular, there are many negative criticisms against this. One is that parties who resort to litigation cannot guard the confidentiality of the case. Although this depends on a case-to-case basis, court rooms are usually open to the public. Moreover, if a case is settled, there is a possibility that the case, its facts, which will include the real name of the parties involved, issue and ruling, will be published and compiled as jurisprudence in the United States Supreme Court Report Annotated. This jurisprudence or case will be accessible to anyone who wants to read it, or who just stumble on the case. Moreover, litigation of a single case could last for years. This is especially when the party who lost in the case appealed to the Court of Appeals, then to the Supreme Court. Appealing a case, because it lengthens the litigation, will also require more money to be spent. Aside from paying the attorney’s fee, one also has to pay the litigation fee, skip work, and pay for commutation to go to the court among others. It is a well-settled and well-accepted fact that litigation is costly, and not everyone can afford it. This is why some people consider litigation as the last resort for the settlement of a dispute because of its disadvantage when it comes to length of time and cost or procedure. This is why other resort to other forms of resolution other than litigation. Aside from litigation, one could choose to settle an issue through mediation, arbitration of negotiation. This are called Alternative Dispute Resolution (ADR). ADR has been available since the 1960s because of the increase in people’s interest to protect their rights, or also because of the increase in the violation of rights. In the United States, the birth of new laws, importance of human rights, discrimination and injustice made ADR popular (Spangler, 2003). Because of the new laws safeguarding rights, many people filed lawsuits against the violators. The upsurge of the complainants made the legal courts not enough to settle all of the cases, or if it is enough it would take too long for a case to be tried and settled because of the long line of cases. This made the people resort and prefer instead the ADR methods. ADR helps decrease the pressure and burden over the judicial system. Although ADR is considered as an informal process of settling disputes, many prefer ADR methods rather than the formal litigation (Spangler, 2003) One form of ADR is negotiation. This method is considered as the most informal of all ADR methods. The only ones involved in a negotiation are the conflicting parties and their respective negotiators. In this dispute-settlement resolution, the goal is to have both parties’ ends meet halfway or come up with a solution in which both parties will agree to comply with through a discussion. The negotiators will only “negotiate” with the other party and its negotiator but will not intervene much because in negotiation, conflicting parties try to settle the dispute on their own. Negotiators are not the one who will decide such dispute, but only serve as assistants to the parties who have to come face to face for the settlement. Persuasion and influence are exerted to the other party in settling an issue through negotiation, until that party gives in or until a middle ground is reached (Crowley, 1999). It is well accepted that one of advantage of resorting to negotiation is that it costs lesser than going through an actual litigation. However, one disadvantage is that it is sometimes difficult to make the conflicting parties face each other to settle a dispute between them (Crowley, 1999). Another form of ADR is mediation, also known as “assisted negotiation.” But unlike negotiation, parties do not have their own negotiators to represent or assist them. Instead, parties seek the assistance of a neutral person known as the mediator. A mediator acts as a facilitator who will determine the facts of the case and come up with a resolution. But, according to Taylor (n.d.) to be impartial between the two conflicting parties, mediators should not be driven by emotion but by justice and reason, requiring the assistance of the law. The mediator puts his self in the situations of both parties and tries to understand the situations as well as the faults of each party. To do this, the mediator meets privately with each party and talk to them about the case, just like what a psychologists do. By doing so, the mediator can come up with a fair solution although this is not binding to the parties. What the mediator gives is more of advice rather than an order. It is up to the parties involved whether to adhere to the advice given to them or not Taylor (n.d.). Mediation and negotiation are similar in the aspect that both are not binding to the conflicting parties. The resolution of the mediator and the negotiator will only be binding if both parties agree to the terms. If not, the mediator and negotiator cannot compel their clients to follow such “advice” (Loo, n.d.). An advantage of mediation is that it affords both parties their privacy. However, whatever is established in a mediation proceeding is inadmissible in a litigation in case the parties elevated the case to the courtroom. But is resolution is reached through mediation rather than a litigation, it is said that such method is 10 percent lower in cost. Moreover, settling a dispute through mediation is faster than resorting to litigation. Through mediation, a dispute can be settled in two to eight months, while litigation of a single case could take three years before being settled (Loo, n.d.). Arbitration is another form of ADR method. Arbitration is like negotiation and mediation because it doesn’t require the service of a judge or a jury but an arbitrator. However, unlike the previous two methods, arbitration is binding. Whatever decisions an arbitrator comes up with, it needs to be complied with by the parties because non-compliance could be tantamount to a violation of contract. An arbitrator acts as a private judge between the parties and will settle the dispute based on his discretion and judgment, of course, after analyzing the facts and weighing the evidence presented. The arbitrator acts as a third person who listens to the opposing parties. This is similar to litigation except that the acting judge here is not really a judge. An arbitrator is given the power of a judge but is only allowed to settle the actual controversies or the issues raised before him (Newhall, n..d.). Both parties will choose the arbitrator. It is important that they choose a neutral one who is not known or related to them in any way to assure partiality. It is also important hat both parties choose an arbitrator that is knowledgeable and an expert in the field in which the issue of the dispute is related. This could ensure that the arbitrator will make a decision he considers best based on his experience in such matter. Unlike in mediation, an arbitrator is not allowed to meet any of the parties privately even to investigate them because it would spoil the essence of an arbitration proceeding (Newhall, n..d.). Arbitration is also considered more inexpensive than litigation, before 40 percent lower in total cost of expenditures. Arbitration and mediation, according to Newhall (n..d.), is more private in nature rather than a court proceeding. The importance to the confidentiality of the issue is also addressed more positively through the said methods. Moreover, through arbitration and mediation, a dispute can be settled faster as compared to going through court litigation, in which cases are scheduled to be settled many days, even months, after. Moreover, arbitration is usually preferred than litigation because the legal requirements are relaxed in this method. Unlike in litigation wherein strict compliance and adherence to court rules and procedures should be observed because non-observance could result to the dismissal of the case or the failure of your party to win the case, arbitration does not need strict compliance with the procedures. The rules could be relaxed and adjusted if agreed upon by both conflicting parties. Schedules or hearings, presentation of evidence or giving of testimony could even be reset and rescheduled at some other time that is comfortable to both parties (Newhall, n..d.). Generally, ADR methods have advantages over litigation. For one, it is less costly than litigation. This could be because of the length of time that is needed to settle a controversy through ADR method. As aforementioned, ADR methods settle disputes in shorter time as in litigation will. Shorter time could be synonymous to lesser fee to pay because lawyers are paid usually by the number of hours they served you or per appearance in court. Lawyers are not paid fixedly by a case they handle. Moreover, ADR methods are more personal in nature. Conflicting parties are made to face each other and to come up with a resolution they will agree with. This is unlike in litigation wherein they will be represented by lawyers (Sprangler, 2003). Conclusion ADR methods allows more direct participation by the parties in settling the dispute. This also leads to more satisfaction with the outcome of the case, which is usually connecting halfway the desires of both parties, because they have directly participated with the proceedings. Moreover, settling through any of the ADR methods increases the chance that both parties will end up realizing their own fault and be more forgiving to one another, or to reach a compromise agreement. This is also because of the direct participation they are encouraged to make with one another. This makes interaction with the other party a key feature in settling any dispute with ADR methods. References A Short Trip Through Negotiation, Mediation and Arbitration. Taken on 29 April 2009 from Read More