Alternative Dispute Resolution is a Collection of Various Techniques

Alternative Dispute Resolution (ADR) is a collection of various processes and techniques uses in the resolution of disagreements or disputes in an informal manner. It is non-judicial process; where by an independent third party is employed to listen to the parties’ side of arguments. However the independent third party cannot render a judgment as a judge in the court of law. The parties who are in dispute can withdraw from Alternative Dispute Resolution (ADR) at any point. They don’t have to accept what is being said by the independent third party. Most times Alternative Dispute Resolution (ADR) voluntary but in some instances it is mandated by the court.

Alternative Dispute Resolution (ADR) takes several forms:-

Arbitration

This is a legal alternative to the court of law and is used to settle disputes before a disinterested third party which is referred to as an arbitrator. One hundred and forty four (144) nations signed to 1958 United Nations Convention on the recognition and enforcement of the foreign arbitral awards. Some of these nations are United Kingdom of Great Britain and N. Ireland. United Sates of America, Trinidad and Tobago, India and Japan.

Arbitration process sometimes looks very much like a court trail, both having an opening statement, testimony, evidence, witness, cross examination and closing statements. The arbitrator then closely evaluation the information and deliver a binding decision

The advantages of this are:-

Choice of Decision Maker - Parties can select an expert in the field of the dispute. For instance it is a medical dispute the arbitrator can be a doctor or specialist, this allow for the evidence to be clearly understood.

Efficiency and Privacy - Not very drawn out and preparation work is less demanding. The proceedings are not publicized and are not directly accessible.

Convenience and Flexible –Meeting are arrange in accordance to the parties schedule and geographic locations.

Cost - Parties can decide on how the arbitrators’ fee paid. That is if it shared or paid by one person.

The disadvantages of this are:-

The parties give up the decision making power, it is solely in the hand of the arbitrator. Parties don’t learn to resolve issues or conflicts for themselves.

The arbitrator statement is final and the decision cannot be appealed. Unless the arbitrator was bias or fraudulent.

Procedures don’t have to be followed a decision can arise out of facts and evidence only.

Mediation

This is an informal dispute settlement process, where by an third party is employed. This person is referred to as a mediator. It is voluntary. The main aim is help disputants reach an agreement.

The advantages of this are:-

Promotes communication and collaboration between parties. Short time frame for decision making

It is confidential and private no publication of personal data or financial records.

Parties can choose the mediator , thus allowing for an expect in the field of the dispute to be selected

The disadvantages of this are:-

If the mediator fails to make a decision the disputant would be force to seek an alternative resolution which could be more costly.

No resolution if the parties disagree.

Conciliation

This is the process by which disputants try to reach an agreement with the assistant of an impartial person referred to as a conciliator. The conciliator is usually a professional and has some experience in the subject of the dispute. Conciliation is used in the resolution of Industrial disputes by the Advisory Conciliation and Arbitration Services (ACAS). It is also used by the Supervision of Solicitors

The advantages of this are:-

It is confidential

The parties doesn’t give up the decision making power.

The disadvantages of this are:-

Conciliation can only work if the both parties work towards a resolution.

The outcome is up to the parties involved. The conciliator doesn’t impose a decision on the subject at hand.

Ombudsman

“Ombudsman" is a Swedish word that means representative or agent of the people. Sweden had the first ombudsman in 1809. There are several different kinds of ombudsman schemes in the United Kingdom UK dealing with various types of complain. For example the parliamentary and health service, local government and financial ombudsman. Their function is to investigate and deal with complaints in the relevant sector.

The advantages of this are:-

The ombudsman provides a free service.

Quick resolution no need for hearings.

Decision is binding by law.

The disadvantages of this are:-

The ombudsman can refuse to get involve in a particular matter or dispute

The complaint might be subject to investigation and information can be published.

Commercial Court

A commercial court deals with resolving disputes in various aspect of commerce. In England, the commercial court falls under the High Court of Justice and is a sub- division of the Queen Bench Division. This court focuses on dealing with matters pertaining to international trade that is any claims in relation to export or import of goods, the exploitation of oil and gas, insurance and commercial disputes just to name a few.

Resolution of disputes can be done through the internet through the use of virtual mediation; communication is done through a secured chat room.

The advantages of this are:-

It is private and confidential.

This can be less formal and intimidating than going to a formal court

Speedy resolution.

The disadvantages of this are:-

The outcome could be unmerited and unjust

Due to this being a voluntary approach all parties may not agree to use this from of mediation.

The advantages of Alternative Dispute Resolution (ADR) are as follows:-

Confidentiality- The parties can agree that the information reveal during negotiations can not be used in any future proceedings. Financial data and personal information are not required to be published.

Avoidance of Acrimony – An agreement can be reached without the hostility related with litigation. There is a greater possible for a complete reconciliation between parties. Introduction of the Family Law Act (1996) allowed for mediation so as to decrease conflict and cost making appropriate for divorces cases. The “winner takes all" resolution is avoided as this is a characteristic of most judgment.

Jury is not involved- Juries are unpredictable and sometimes bias. Thus both parties are more likely to have a justifiable resolution to the conflict at hand.

Flexibility- It is possible to settle matters beyond the compasses of the law or legal judgment. Multiple parties can be involved.

The disadvantages of Alternative Dispute Resolution (ADR) are as follows:-

Suitability and effectiveness - This method of resolution may not be appropriate for every dispute, and may not be effective if it takes place before the parties have adequate information.

Statutes of limitation:-lawsuits must be brought within a particular period of time, parties must be careful not to let a statue of limitation to run while a dispute is in an alternative dispute resolution (ADR).

Lack of consistency: - Disputes are judge on it own merit. No system of precedent and hence no guidance for further cases. It is difficult to enforce decision as only the court enforces decision. This is inappropriate where an injunction is required

“Hazel Genn has produced some interesting statistics on civil justice and alternative dispute resolution in England. These observations were made at a seminar in January 2005 for the Scottish Consumer Council, and refer to as yet unpublished research for the Department of Consumer Affairs (DCA)

It is difficult to compare the pre-Woolf and post-Woolf civil landscape without baseline statistics. As yet unpublished research for the DCA on the pre-Woolf litigation landscape (pre-1999) demonstrates that:

50% - 83% of defended cases in the county courts were personal injury (PI) claims

overall at least 75% of cases were within the small claims or fast track financial limit; in most courts this figure was 85% or more

the higher the value of the claim, the more likely both sides were to have legal representation

PI cases had high settlement rates and a small number of trials. Non-PI cases had a higher proportion of trials, and a much higher proportion of cases withdrawn. Debt cases were most likely to end in trial (38%) and in all of those the claimant succeeded. In 96% of all cases going to trial the claimant was successful

In all types of cases 50% of awards or settlements were for £1,000 - £5,000, and a further 25% - 33% were for £5,000 - £10,000. Costs in non-PI cases were relatively modest, and in PI cases around 50% had costs of £2,000 or less, 24% had over £4,000."

“Lord Woolf’s approach to reform was to encourage early settlement of disputes, through a combination of pre-action protocol, active case management by the courts and cost of penalties for parties who unreasonably refused to attempt negotiation or consider ADR. Such evidence as there is indicates that the Woolf’s reform is working, to the extent that pre-action protocols are promoting settlement before application is made to the court; most cases are settling earlier, and fewer cases are settling at the door of the court. In fact, most cases are now settled without a hearing. However, costs have increased, or have at least been front-loaded. In particular, in cases where mediation has been attempted and agreement has not been reached, costs are clearly higher for the parties."

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