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Published: Fri, 02 Feb 2018
Compare and contrast the following forms of dispute avoidance
Alternative Dispute Resolution techniques are widely used for settlement of disputes in all sectors of civil life especially commercial side. The object is to unlock the disputes and focus upon business. There are several methods that can be used as alternative to formal judicial methods of resolution of disputes. Judicial methods for resolution of disputes are so exhausting that not only the parties but also the courts realise it; the courts in recent times, encourage parties to refer their disputes to arbitration or mediation. The law is also changed so as to make it part of the process of resolving disputes in the commercial sector. The object of this essay is to compare and contrast several alternative dispute resolution methods. These include mediation, conciliation, expert determination, early neutral evaluation, mini trial, adjudication, arbitration and mediation. For this purposes, the study takes into account one by one and introduces the technique followed by comparing and contrasting it with other techniques of alternative dispute resolution (Blake, 2010).
Mediation is one of important methods of dispute settlement outside the court, alternative dispute resolution. In mediation process, the dispute is settled by the parties themselves with the assistance of a trained mediator. The mediator helps the parties to negotiate on the issues between the parties and supports them by identifying issues and the ways of settling those disputes. The mediator doesn’t give judgement as is given in a court of law or award as is given by an arbitrator of panel of arbitrators. Accordingly, the mediation proceedings are not binding upon parties. In other words, at the end of mediation proceedings, it is not necessary that the parties come up to settlement or any form of binding thing is taken out such as the award or judgment. A mediator is more like a facilitator who facilitates the parties to a dispute to take up the responsibility of their disputes and settle them down. It is a process in which the parties offer deals to settle the dispute. The object is to unlock the disputes and proceed to business again. The process of mediation is different from negotiation as it has fixed time scales to settle the dispute or look for other ways of settling the disputes. In negotiation, there is no fixed time scale so the parties keep on negotiating the issues. There is another aspect of mediation, it is private and confidential. This means the mediation proceedings are not only not binding on parties but the parties to a dispute are not allowed to take them on any forum such as judicial forums. For instance, it is not the case if during mediation proceedings, one party gives offer to other party; this offer cannot be used by the other party in a court to support their point that the other party is faulty as they gave offer during mediation proceedings. Another thing about mediation is that it is not binding upon parties to go to mediation as it is purely their will to opt for mediation or not. But if the parties have already agreed for mediation they are bound to go through the mediation process. In other words, if the contract provides that in case of dispute, the parties will go through mediation process by hiring services of a trained mediator, then that clause will still be valid no matter the contract comes to an end. It is because the dispute settlement clauses of agreements are valid even though the agreement is repudiated by parties (Roberts, 2005).
The process during mediation is that the mediator opens dialogue with parties. He invites the parties to a dispute to come up with their theories of dispute settlement. He encourages the parties to describe their issues and their opinions about how the dispute should be settled. He also encourages what kind of settlement they want and what are they willing to offer the other party to settle the dispute. The object is that by this way the other parties will be able to rationalise the practical problems coming in the way to settle the dispute. For instance, the parties are encouraged to identify costs for settlement of dispute which includes the cost of loss of business. So, in all the role of mediator is to facilitate the parties to settle dispute by creating favourable environment; assist the parties to communicate with one another; and facilitate the parties to negotiate the disputes. There are also some functions of the parties. The parties to a dispute are expected that they come up with thorough preparation of their case before entering into mediation process. For this purposes, they have to be prepared their flexibility in terms of accepting their compromise or striking a deal. They are expected to be open in minds. In other words, they are expected that they come with a mind to settle the dispute rather a mind that they are not willing to settle the dispute. They are also expected that they give full disclosure of the information (Bush, 2004).
Conciliation is a form of alternative dispute resolution methods in which a conciliator helps the parties to settle their dispute. The conciliator helps by identifying the objectives of the parties. It is different from arbitration in the sense there is no award at the end of proceedings. It is different from court proceedings because the conciliator doesn’t give judgement or decision as is given by a court of law. It is different from mediation because in this process the conciliator actively participates in the proceeding. He conducts himself proceedings by going to the parties and asking them to prioritize their objectives. He asks them to mention which is their first objective and then second and the list goes on. Similarly, he also asks the parties to let him know what are the points in which they will not be ready to shift and what are the points/issues in which they can be flexible. He then goes to the other party and tries to bring them on one of the objectives. He starts with minimum of concession then moves on to maximum. So, it is different from mediation because a mediator encourages the parties to understand or take charge of their dispute instead of actively participating like this. There is similarity between mediation and conciliation in the sense that in both of the processes, there is one guy who tries to settle the dispute. In both, the outcome is not binding. In both, the proceedings are confidential so other party cannot take those in any other forum. For instance, as it was said earlier the parties cannot rely on this to argue their case or substantiate their case before any other forum. It is because this is purely confidential and private. Another aspect of this is that the conciliation proceedings are not binding, which is same as is mediation (Kole, 2001).
Expert determination is also a form of alternative dispute resolution technique, whereby parties submit their dispute to a person who is able to decide in accordance with his acumen. This concept is taken from olden times in which societies were classified into tribes and tribal chiefs or religious influential persons or other influential persons were taken as experts. The dispute was presented to an expert who was expected to give verdict on it. The verdict is not binding before a court of law but it holds moral authority that the parties will abide by it. In this way it is similar to the court proceedings in which both parties present their views and the matter is resolved by a decision of court which is binding. It is also similar to arbitration proceedings in a way that the decision is binding and the rules of proceedings are flexible unlike court proceedings. The parties submit their dispute and receive verdict on their dispute. It is not as mediation proceedings in which there is no binding thing as such. Similarly, it is not similar as conciliation proceedings as it is binding on the parties. It is different from court proceedings because its verdict is not binding before a court of law. Similarly, it is different from arbitration proceedings because its verdict is not binding before court of law as is the case for arbitration. This process is still available in some societies of the world such as Afghanistan, tribal areas of Pakistan, India or in most of the societies it is available at family level. For instance, the decision of mum is sometimes binding for her son/daughters, though it doesn’t have legal value in the eyes of court yet it has some force or sanction of enforcing it. In Dean v. Prince 1953 Ch. 590 at 591, the court used the word expert determination instead of an arbitrator (Blake, 2010).
Early Neutral Evaluation
Early neutral evaluation is also a method of alternative dispute resolution in which a person acts as a neutral person and evaluates the merits and demerits of their position. This technique is also taken from olden times when people used to go before someone who was wise in the locality to know their position with regard to some claim or defence. These days this is used alongside mediation proceedings so as to help the parties to evaluate the merits of their case. This is usually done by an experienced litigator who has vast experience of litigation. He gives opinion about the merits and demerits of their case. He is neutral in his opinion and this enables the parties to keep their trust on him. He doesn’t know the parties or doesn’t have interest in any one party at the cost of the other. He gets his fees from both parties no matter they settle their dispute or not; this enables him to keep neutral position and also to keep the trust of the parties (Blake, 2010).
Early neutral evaluation is different from mediation in the sense it is direct communication of early neutral evaluator about their issues. In mediation, the parties try to sort out their dispute/issues themselves. A mediator doesn’t comment upon the merits or demerits of a case. He is only facilitator. In early neutral evaluation, the evaluator deals with the merits and demerits of the case directly. It is different from court or arbitral proceedings because an evaluator only gives opinion about the merits of the case and he doesn’t give verdict binding on the parties. Similarly, it is different from conciliation because an evaluator doesn’t try to settle the dispute of the parties. All he does is to give an honest and neutral opinion with regard to the merits of the case of parties. In recent times, early neutral evaluation is taken as part of the mediation proceedings. This means it is good technique for the resolution of disputes of commercial nature (Blake, 2010).
Mini trial is also form of alternative dispute resolution technique. This is widely used in these days in the commercial world. In this, the parties to a dispute select one representative from each party to sit on the panel. There is also one neutral person who is independent and who is appointed with mutual agreement. Then parties file their briefs, this is followed by recording of evidence and finally a verdict which is binding on the parties. This is different from arbitration proceedings because this doesn’t end in award. There is a binding judgement which is same like in court but with the consent of parties after settlement is reached. The value of that judgement is the same as is the value of an award in the eyes of courts. It is different from mediation as this involves a process that goes for adjudication of dispute. In other words, the panel sits as adjudicator rather than as mediator. It is also different from conciliation on the same ground that the panel in mini trial sits as adjudicator and not as conciliator. Moreover, the number of people on the panel is more than the no. of people involved in the mediation or conciliation proceedings. Similarly, there is a difference in the way the proceedings are conducted in mini trial and mediation, conciliation or early neutral evaluation. Another important aspect is that in mini trial the evidence is heard by panel which is followed by settlement proceedings. The parties try to convince each other regarding the merit of the case. Now, both parties know the strengths and weaknesses of their case. They are encouraged to settle the dispute by neutral member of the panel. If an agreement is reached then that agreement is binding and if not then he tries to settle by convincing the parties. If no agreement is reached at all then the proceedings automatically expire within thirty days. Like mediation and conciliation, the proceedings in mini trial are confidential. In other words, these proceedings cannot be used at any forum to substantiate any point (Hibberd, 1999).
Adjudication is a process in which parties take their dispute which involves question of law before some designated forum. It is also a technique of alternative dispute resolution. It is because the matter is not taken before a court. Adjudication also takes place before courts of law and it also takes place before appointed forum. For instance, for the resolution of insurance dispute, some kind of adjudication forum is created to resolve the insurance disputes. Similarly, the disputes regarding construction contracts there is one forum that resolves those legal disputes. The point rose before them is whether or not someone is bound by it or not. In some countries, there is a forum called ombudsman which resolves such disputes. These disputes include disputes such as electricity bills etc. These are alternative dispute resolution because they are not adjudged by courts. The decisions are binding on litigants. It is different from mediation because the decisions are binding; adjudicator doesn’t facilitate dispute settlement but it gives binding decision. It is not judicial settlement because it involves not strict process as is in court (Hussey, 2010).
Arbitration is also an alternative dispute resolution process. In arbitration, the dispute is taken to an arbitrator who is usually appointed by parties or agreed by parties at the time of writing an agreement. If a contract contains arbitration clause then no matter the contract comes to an end but the arbitration clause is still valid. Even if one of the parties to dispute is interested to take the matter before a court of law even then the arbitration clause is valid and it will come into play. The court will direct the parties to go to arbitration. An arbitrator may be appointed by parties by mutual agreement or to be appointed by one each and then umpire appointed by arbitrators themselves. The proceedings at arbitration are not private or confidential as is the case in mediation or conciliation. The proceedings are binding on the parties if a party doesn’t co-operate with arbitrator then it may be enforced by award in default and that is enforceable on such party. The party who gets award may use judicial forum to enforce such award if the need arises. The arbitration proceedings are different from mini trial because the arbitration is binding on parties. Similarly, it is different from mediation or conciliation because it is binding and the arbitrator doesn’t sit as facilitator to encourage communication amongst the parties. The arbitration proceeding are similar to the mini trial in the sense as it is also a trial in which the rules of evidence are relaxed. There is one similarity in arbitration and mediation i.e. an arbitrator or mediator is chosen by parties unless the contract provides otherwise (Davies, 2010).
Negotiation is also a form of alternative dispute resolution technique. In this a person called negotiator helps the parties to sort out their dispute. He controls the negotiation process between the parties. It is taken place when the parties to dispute sit on one table and talk about their grievances. It is different from mediation as the parties sit together on one table. It is different from conciliation as the negotiator doesn’t meet the parties alone. He talks in the presence of all and helps them to sort out their dispute. Negotiation is private and the parties cannot rely upon any offer or statement made during negotiation proceedings. It is not binding upon parties. There is no award or judgement as is in arbitration (Lack, 2010).
The essay is an effort to compare and contrast various alternative dispute resolution techniques. Mediation is a process in which parties are encouraged to settle their dispute by a mediator. In conciliation, a conciliator takes up the responsibility of settling the dispute by identifying objectives of one another. In negotiation, the parties sit alongside a negotiator who only promotes negotiation. In arbitration, the dispute is put before arbitrator who gives award which is binding on the parties. In mini trial, there sits a panel who try to settle down the dispute; but the proceedings are in the same style as a trial in a court of law. The object is to find out the merits of case and to see where the parties stand. In adjudication, a question of law is referred for determination to appointed adjudicators. There are several similarities and differences in the use of these several alternative dispute resolution techniques. The object should be at the time of referring the dispute to resolve the dispute. In recent times, there is growing trend in the commercial world to use alternative dispute resolution techniques instead of using traditional court proceedings which are expensive, time consuming and long. Of all alternative dispute resolution techniques, the most commonly used are mediation and arbitration. It is often a case that parties put a clause in the contract that suggests that in case of dispute the matter will be referred to arbitration or mediation.
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