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Desire of a democratic society
The desire of a democratic society has been a long dream in human‘s history. Civil litigation is a long -standing form of dispute resolution used by civilians to sort out their difference. However, this process is excessively expensive, time-consuming with long procedure and various rules of legal proceedings so it has prevented the delivery of justice to society (Ward, 1998).
Therefore, there has begun a tendency to find other methods to resolve disputes between individuals and businesses. These alternative methods are referred to as ‘ADR’, which is an abbreviation for ‘Alternative Dispute Resolution’.
The purpose of this essay will be providing the definition of ADR and its advantages as well as its disadvantages. The essay also highlights how to use each method of ADR appropriately to specific situation in various business environments.
Civil Litigation and Court
Civil litigation can be defined as legal dispute between individuals, parties or organisations (Ward 1998).
Normally, the party who sets the lawsuit will be referred as the “plaintiff" while the party being pursed will be referred as the “defendant". The plaintiff must file a pleading to the Court known as a “complaint" while the defendant must file a pleading of their own known as an “answer". (Delaney’s Law Firm, 2011)
The disagreement can be resolved in the Court with the present of the judge when the plaintiff expects to seek some type of damages (compensation) from the defendant party for the loss, harm or injury they have suffered (Delaney’s Law Firm, 2011).
The whole purpose of the civil justice process will be providing fairness to civilians and equality to society. However, this process is slow, complicated with many rules, procedures and restriction especially in the High Court and Tribunals. It “is both time-consuming, expensive and suffers the disadvantage of being conducted in public" (Ward, 1998, p 328).
Furthermore, the consequence of Court process is enormous and unbearable for parties who pursue the legal proceedings as relationship and reputation will be in jeopardy.
Therefore, an additional means of resolving issues or disputes have been encouraged to use alongside with the civil litigation. This process is known as Alternative Dispute Resolution (ADR) consists of many advantages such as flexibility, confidentiality, low- in costs. It also saves time and provides efficiency and costs effectiveness to individuals or the parties involved.
Alternative Dispute Resolution
Alternative dispute resolution (ADR) refers to processes and techniques of sorting out disagreement without a hearing in Court (Keenan& Riches 2002).
According to InfoLaw Limited (2011) “ADR is any type of procedure or combination of procedures voluntarily used to resolve issues in controversy."
Individuals, business partner, firms and company’s disputes can be resolved with flexibility and confidentiality by using the ADR methods. Therefore, it maintains privacy and keeps a good relationship between the parties without any publicity. The daunting experience of going through the formal judicial process can be avoided and the pressure will be minimised from both sides.
ADR is widely used in different range of conflicts, such as construction industry disagreement, contractual disputes, insurance claim, family rift, child care issues, divorce cases or personal injury.
There are several types of ADR which has been classified into four subtypes: arbitration, conciliation, mediation and negotiation.
Arbitration is a process where “the parties to present their arguments to an arbitrator of their choice, in private and at their own convenience" (Keenan& Riches, 2002, p 47)
The arbitrator may be a person or a group of person with legally qualification which has been chosen by both parties. The arbitrators must provide special knowledge or experience of the subject matter and deliver final decision (known as award) which is bound by both sides. Arbitration’s decision is final and can be served as the judgement of a court. (Investor Glossary, 2011)
There are numerous advantages of arbitration. Firstly, it is less costly as it does not require going through all the court proceedings with expensive legal services fee. Secondly, it is speedier because the unreasonable delay time can be saved. In addition, it is less formal experience, less adversarial than civil litigation which helps maintain business relationship between the parties. Moreover, there will not be a public hearing and public record so conflicts are served with confidentiality (Mazirow, 2008).
Unfortunately, there are disadvantages of arbitration. Firstly, arbitration’s decision is final and binding so both sides give up their right to an appeal even if arbitration makes a mistake .Secondly, if the dispute is complicated and is presented in front of panel of arbitrators, the process will not be efficiently and cost- effectiveness.
Moreover, there is no jury so from the plaintiff’s point of view that may be a drawback (Allen& Allen, 2009). In addition, arbitration may deliver final decision “based upon broad principles of “justice" and “equity" and not necessarily on rules of law or evidence" (Mazirow, 2008).
Conciliation is a process where an independent person (the conciliator) assists the parties to sort out their disagreement with confidentiality. The conciliator must be impartial and should not take sides. The conciliator is usually the third neutral parties who have been chosen by both sides. He will meet with both parties separately with the aim of reaching a settlement without the need of a hearing. The grounds for compromise are suggested by a conciliation that plays a more active role than a mediator. (Peterjepson, 2011)
The advantage of conciliation is that it reduces the tension, anger and opens the communication which is vital to any final settlement. Secondly, conciliation process will be providing essential technical assistance to the parties to help them sort out their conflicts. Moreover, in conciliation both parties can be satisfied as decision is acceptable to both sides.
Furthermore, it provides privacy and it is economical in legal costs expense. It also retains a good relationship for the future cooperation.
However, there are disadvantages of conciliation as there is no sanction on either side if they do not take parts in conciliation. If one party is unwilling to negotiate then conciliation can be considered as failure because the settlement must be reached by both sides.
Furthermore, there is no set time limit so it is difficult to determine how many sessions will be needed to reach an outcome. It can add more money, time delays to the process which is traumatic experience to parties involved. (Peterjepson, 2011)
Mediation is a confidential and informal way to form an agreement between parties involved in disputes by using a neutral third party (mediator). The mediator works with both parties to assist them to reach a voluntary solution to dissolve their difference (Keenan& Riches 2002).
Normally, both parties must consider the mediator as impartial before he can provide skills and technique to open and improve dialogue. Mediation can be used in various situations to sort out the difference in workplace commercial and construction, family rift and divorce issues, diplomatic problems.
The major advantage of mediation is low in costs and less formality than civil litigation process. It helps to reduce hostility between parties and improves the possibility of future co-operation (The Mediation Centre, 2011). In addition, mediation reduces tension, anger and misunderstanding, improves the communication of both parties. Furthermore, it is processed with confidentiality, flexibility, privacy and it usually promotes positive relationship with a more open dialogue.
The first disadvantage of mediation is that “either party can withdraw from the proceedings at any time" even the mediation have not reach an agreement (Lawfirms, 2011). Secondly, if a party is not honest and withholding information then mediation can be a problem particularly in financial issues. In addition, if the mediation is unsuccessful, the parties may have wasted time and money on the process but still need to go through a trail. Finally, the mediation’s decision is not legally binding so it is not enforceable through the court. This could lead to a traumatic experience for both sides as they might end up chasing each other for compensation.
Negotiation is an informal process of dissolving with disputes between individuals or parties. “Negotiation describes any communication process between individuals that is intended to reach a compromise or agreement to the satisfaction of both parties" (Answer, 2011).
The main purpose of negotiation is to provide both sides a chance to find a solution to their disagreement. However, parties must be operated with each others in order negotiation can be carried out and deliver a final outcome.
Negotiation consists of various advantages over civil litigation. Firstly, negotiation is a quicker process than the court hearings where parties can negotiate between each other until an agreement could be finalised. Secondly, it is low in costs as there is no court costs involved so it is seen as the cheapest option and less formality than litigations. Finally, negotiation is dealt with privacy and confidentiality so parties’ relationship, prestige will be preserved particularly in divorce case which involved children and emotion. (Peterjepson, 2011)
However, negotiation also has several disadvantages .Firstly, negotiators must have specialist knowledge and unique technique about the matters which they are negotiating otherwise it fails. Secondly, negotiations sometimes can last for a period of months or years especially when a party is unwilling to cooperate. Furthermore, the decision between both parties is not binding so there could be a possibility of going through the court proceedings after negotiation fails. Therefore, both parties must pay an expensive legal costs service and have wasted time in an ordeal of negotiations. (Peterjepson, 2011)
In summary, ADR method is an alternative solution apart from civil litigation. Each process has various advantages as well as disadvantages. Depend on each specific situation, the parties involved must apply an appropriate form of ADR to sort out their disagreement and reach a final decision.
Although these are a good option to start with when a problem occurs but most of ADR method does not deliver the final decision which satisfies parties and they might still end up at the Court. In my opinion, civil litigation is still the best option for most cases. Although there is a long delay or complex procedures it is still trusted by majority of people or businesses in our society.
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