A Bunch of ADS Effectiveness - Term Paper Example

and Section # of Disputes can arise in any area of our lives, in the workplace, in the neighborhood, in school, in business, and in families. The parties then look towards the court system for their disputes. Nowadays, professionals try to resolve their disputes outside the court system. These processes are known collectively as "alternative dispute resolution," or simply "ADR." ALTERNATE DISPUTE RESOLUTION It can be said, “Alternative Dispute Resolution is any type of procedure of combination of procedures voluntarily used by the parties to resolve issues in controversy.” The list of procedures in Alternative Dispute Resolution is not exhaustive; however, there are three main popular kinds of procedures i.e.; Arbitration, Mediation and Conciliation. There are other specialized types as well such as Ombudsmen, Adjudication, Early Neutral Evaluation and Expert Determination. (Legal Explorer, 2010) Each procedure suits a different set of scenarios in respect to what and how the parties seek to resolve the dispute. EFFECTIVENESS OF ADR Litigation, i.e. referring the court for a dispute can prove to be quite expensive. At times the cost of bringing a dispute to trial continues to rise which can sometimes become impossible to afford on reaching a certain level, resulting in an unsettled dispute. If the resolution of dispute is achieved through formal court proceedings, it can result in time-consuming, complex and unnecessarily expensive. On the other hand, adopting any kind of “alternate dispute resolution” procedure, settlement can be quick, quite simple and a bit of less expensive. Arbitration Arbitration can produce different solutions to court-based adjudication. For example, it could produce the following results: A change in the way a person or organization behaves A promise that a person company won’t do something An apology An explanation for what happened A mistake corrected Compensation In Arbitration an independent impartial third party hears both sides in a dispute and makes a decision to resolve it. Awards of the arbitration are binding upon the parties subject to appeal. A dispute may be referred to Arbitration either by agreement out of court, or compulsorily. Mediation Mediation, although very much similar to conciliation, is another method commonly being used in the commercial arena. Mediation aims to assist two (or more) disputants in reaching an agreement. The mediator does not express his judgment, views of any advice. (Tessier, 2005) The key component of mediation is that whether an agreement is reached, and what that agreement, if any, is, is determined by the parties themselves other than being imposed by a third party. Comparatively, mediation works with less difficulty; the practitioner has no advisory role. Instead, a mediator seeks to help parties to develop a shared understanding of the conflict and to work toward building a practical and lasting resolution. Mediators use appropriate techniques and / or skills to open and / or improve dialogue between disputes. Conciliation It differs from Arbitration as the conciliation process, in itself, has no legal standing, and the conciliation usually has no authority to seek evidence or call witness and usually writes no decision, and makes no award. The difference between Conciliation and Mediation should be considered. ‘Conciliation’ sometimes serves as an umbrella-term that covers all mediation and facilitative and advisory outcome and both share many similarities. For example, both processes involve a neutral third-party who has no enforcing powers. One significant difference between conciliation and mediation lies in the fact is that the conciliators possess expert knowledge of the domain in which they conciliate. The conciliators can make suggestions, for settlement terms and can give advice on the subject matter. ADVANTAGES OF ALTERNATE DISPUTE RESOLUTION A major advantage of ADR is that the parties are involved in choosing the person who is going to settle their dispute. This means that they can gain the services of an expert in the particular commercial field that they are in. Another major advantage is that there are no juries involved. It is often believed that juries do favoritism i.e. they decrease the damage or awards according to whether they like the parties. The main crux in avoiding juries is that both parties will more likely to get reasonable damages if they are due. In England and the US, the cost of going to court is high, due to the high cost of legal representation. It might be cheaper to go to arbitration, where legal representation is not always necessary. However, in other countries, where the cost of court action is not so high, it might be more expensive to go to arbitration. (Walia, 2009) Another advantage is also observed that ADR is usually private, unless the parties want the proceedings in public. If the dispute is on a sensitive matter than the parties would agree to maintain privacy. Without a doubt, ADR is way speedier than those trials. In many jurisdictions, it takes years to begin arguing your case before a judge, much less get a verdict (Superior Court Of California). According to the study of Roger Fisher and William Ury, it is also said that cost involved in the dispute increases with the increase in time. Many high-stakes cases of great complexity have been resolved through ADR, including securities fraud class actions, large business disputes, merger and acquisition claims, RICO claims, environmental disasters, and international transactions. It can also be said that complex issues can be resolved through experts instead of non-expert, lay juries. Many people prefer ADR because they view it as a more creative process focused on problem solving, unlike litigation, which can foster an adversarial relationship. DISADVANTAGES ALTERNATE DISPUTE RESOLUTION There is no appeal to a decision of an Arbitrator, with few exceptions. On the other hand, the decision of a lower court can be challenged in a higher one. (Lamance, 2008) While the option of making the proceeding confidential addresses some of this concern, some parties still want to go to court “just on principle.” Generally, it is observed Arbitrators can only perform cases involving money. They cannot order parties for the performance or refraining (injunction). (Lamance, 2008) Arbitration also lacks in cross examination of the witnesses. (James) NEED OF ADR Alternate Dispute Resolution system is not a new phenomenon for the people of this country; it has been prevalent in India since time immemorial. The concept was also prevalent in other parts of the world in various forms and manners, like in case of Philippines the leader of the local area, in Latin America, an officer of the State juece de paz could use informal procedures to mediate or conciliate between parties. CONCLUSION In US, the idea of Alternate Dispute Resolution has been introduced only few decades prior to this country but it is a great success. 94% cases are referred to be solved by Alternate Dispute Resolution process, wherein 46% of such cases are decided without contest. It is also observed that in many countries, courts are too clogged to dispense justice promptly. It takes a lot of time from the filing of the case to actual hearing stage. There are too many intermediaries, which although form a part of judicial procedure but in effect cause delay. The unimaginable delaying reasons such as notices, the service, the framing of issues, evidences and many more are the barriers which prevents one to go to courts and refer to arbitration. BIBLIOGRAPHY (n.d.). Retrieved from Superior Court Of California: http://www.fresnosuperiorcourt.org/alternative_dispute_resolution/ (2010). Retrieved from Legal Explorer: http://www.legalexplorer.com/legal/legal-QA.asp?Sid=3 Clarkson, R. (2009, August 19). 10 things you need to know about ADR. James, L. (n.d.). The Pros and Cons of Alternative Dispute Resolution. Lamance, K. (2008, November). Advantages and Disadvantages of Alternative Dispute Resolution. Tessier, R. (2005, December). Making Effective Use Of Alternative Dispute Resolution For Small Businesses. Walia, I. (2009, February 28). 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