Advantages and Disadvantages of Alternative Dispute Resolution
Length: 1901 words (5.4 double-spaced pages)
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Alternative Dispute Resolution (ADR) involves dispute resolution processes and techniques that fall outside of the government judicial process. There has been moves against ADR in the past by entities of many political parties and their associates, despite this, ADR has gained inclusive acceptance among both the broad community and the legal profession in past years. In fact, many courts now entail some parties to remedy to ADR of some type, usually mediation, before allowing the parties' cases to be tried. The increasing attractiveness of ADR can be clarified by the increasing caseload of traditional courts, the perception that ADR imposes fewer costs than litigation, a preference for confidentiality, and the desire of some parties to obtain larger control over the selection of the individual or individuals who will decide their dispute.
ADR holds an extensive, easily influenced and diverging choice of processes for finding solutions for disputes which are personified by structured negotiation and consensus. It is regarded that arbitration is a familiar ADR technique, however, it is a more of a official adjudicative and adversary technique initially a confidential litigation process which has more commonality to litigation than the more original consensual processes which symbolise ADR. As simplified by Angyal (Alternative Dispute Resolution, 1987, p. 11):
"The key difference between ADR and those traditional techniques of litigation and arbitration is that ADR techniques are used to produce a resolution to dispute through a negotiated agreement while litigation and arbitration are processes by which a result is imposed on the parties."
We can say that many issues arise with terms. A past Chief Justice of Supreme Court of New South Wales and one of Australia's powerful proponents of ADR, named Sir Laurence Street, has commented that:
" It is not in truth Alternative'/ It is not in Competition with the established judical system. It is an Additional range of mechanisms within the overall aggregated mechanisms for the resolution of disputes. Nothing can be alternative to the Sovereign in the discharge of the responsibility of resolving disputes between state and citizen or between citizen and citizen. WE can however, accommodate mechanisms which operate as additional or subsidiary processes in the discharge of sovereign's responsibility. These enable the court system to devote its precious time and resources to the more solemn task of administering justice in the name of sovereign." (Street, The language of alternative dispute resolution' (1992) 66 Australian Law Journal, 194)
We must not consider ADR as simply a reduced relative to the reality of the courts, this is important. In reality it is possible to conserve the business-related relationship only when complicated and constructed way is aimed at bringing the parties to an interceded explanation by way of resolution. The actuality is that most cases are resolved despite the matter. One of the main factors of ADR is that the process aims at getting a resolution at a minimal cost and as fast as possible. However ADR does not stop a lawful action. If the ADR is not successful in resolving the matter (dispute) then both parties can take the issue to the courts. The achievement of an ADR would yet propose that resort to the courts is much less likely if an ADR process was used.
ADR is commonly simplified into a number of common techniques; these include negotiations, mediation and arbitration. This is because ADR falls on the accord it preserves in an easily influenced manner both in the method of resolving the dispute.
Contribution in terms of a Facilitated Negotiation is done by choice and generally These negotiations are used for informal settlement of disputes and are structured and is a process which involves assistance from a third party assistance. We can say this is generally correct by look at this statistic result where only 6% of disputes result in the commencement of legal proceedings and only 0.2% of the total of business-related disputes proceed to court adjudication (Fulton, Commerce alternative dispute resolution, 1989, p.14). Normally Direct negotiations', which aren't really a structured mechanism, initiate from one party implementing a settlement on the other party instead that the parties continue by way of negotiation to a consensual resolution. We can say that in Direct negotiations there is no third party who assists the resolution process or imposes a resolution.
Both Conciliation and mediation initiate in an agreement among the disputants to call in the help of a facilitator to aid in the structuring and conduct of settlement negotiations which will comprise, as part of their nature, private consultations with each disputant. Usually no one has an authority to impose a solution on the disputant this includes judges, arbitrators and facilitators. A third party that is the mediator is in the mediation process, he/she facilitates the resolution process(and may even suggest a resolution, typically known as a "mediator's proposal"), this however does not inflict a resolution on the parties. In Australia ADR is mediation because after all mediation is a process of ADR. The distinction among the processes lies in the position of the third-party facilitator whose role may be submissive this means to find a consensual agreement without providing opinions by isolating the issues of dispute. Also the role maybe proactive this is where they provide proposals regarding settlement and likely even offer a non-binding purpose which may lead to a consensual accord by taking in a dynamic role in the negotiations.
A more commanding approach of mediation' is called the Conciliation'; this takes place when the third party endeavours to devise resolutions to the quarrel. Conciliation is "active", mediation and is "passive". Conciliation in and of itself really has no lawful position, this means the conciliator has no authority to search evidence or call witnesses and generally inscribes no rulling and has no award. in this sense conciliations makes difference from mediation in that the main ideal to conciliate, most of the time by searching concessions. In mediation the mediator pursues to direct the discussion in a way that facilitate the parties needs which takes opinions into account and pulls out of accountability in representation. There is no definition of mediation contained in the Courts (Mediation and Arbitration) Act 1991 (Cth).
A mini trial is not really a trial at all. Instead it could be seen as a procedure where structured negotiations are to be involved. The parties show that is to present a case argument and substantiation (evidence) to a mediator who provides suggestions on the actuality of the dispute. The mediators generally can give opinion on likely, probable and popular outcomes and the means to achieve these.
Expert evaluation is when a mediator has selected on the origin of their expert understanding and acquaintance of the situation and routinely investigates the dispute. In doing so , the mediator gives opinion on the facts/information and suggests probable and advantageous results and the means to accomplish these. Under Part 72 of the New South Wales Supreme Court Rules referral to a referee may take place without the consent of the parties.
Arbitration can be said that parties to a dispute show the dispute and evidence to an arbitrator in this process the arbitrator makes a determination or a resolution similar to a judge.
There are many advantages of ADR. Firstly ADR can save time, A dispute generally can be resolved or decided much quicker with ADR usually in a number of weeks to a matter of short months compared to a lawsuit which may take a year or more. You can save money; most disputes are resolved at 10% of the cost of the litigation.
There is Increase Control over the process and the outcome in ADR parties play a stronger position in resolving the process and the outcome. Most ADR process parties gain more opportunity to tell the complete side of the case compared to in a trial. Mediation allows the parties to create distinctive solutions that aren't possible in a trial. Arbitration allows the parties to choose an expert in a specific field to decide the dispute. Parties come in time of a flexible nature. Lawyers maybe used to prepare facts for the process and to attend meetings give legal advice and prepare settlement papers. Arbitrations have operated pursuant to the Arbitration (Civil Actions) Act 1993 (NSW).
A preservation of relationships is kept that is the goodwill of the parties this means ADR can be less adversarial and hostile way to resolve a dispute. In example of this, a skillful mediator can help parties effectively to convey the message of their needs and position to the other side. This may be important.
There maybe an increase in satisfaction, this means that in a trial, there is a distinctively a winner and a loser ultimately in the resolution. The losing side is not really happy, and even the winner may not be completely be content with the result. ADR can assure win-win outcomes and accomplish real goals. Along with other advantages the party may finally be "satisfied" with both dispute resolutions process and the result.
Privacy is kept as each case is held in confidentiality and an improvement of relationships is kept between client and attorney as attorneys can be seen as resolving solutions rather then a combatant. In total confidence of the third party parties may talk separately. As a satisfaction this results in disclosure of underlying interests. The centre in which the dispute is held resolves over 90% of its cases, and resolved in 5% of the time of litigation. In conclusion regarding the advantages it is worth considering using ADR early in a lawsuit or even before you file a lawsuit.
Considering the advantages there may also be disadvantages. We can say that ADR may not be suitable for EVERY dispute but certain Disputes. If ADR is obligatory, the parties generally reject most court protections, including a decision by a judge or jury under formal rules of evidence and procedures and review for legal error by al appellate court. Less opportunity to search the other side's case with compared to litigation. ADR may not be effective if it takes place prior to the parties having enough facts to resolve the dispute. The neutral may charge a fee for service. If dispute is not successful then parties may have to put money into an additional lawsuit including the existing ADR. Cases must be put forward within specific time periods, these are known as statutes of limitations, it may be put for ward any time but there is a limit in time. This makes the party to be careful in ensuring that the dispute is not affected by the statute of limitations.
Business & the Law, by Andrew Terry & Des Giugni Forth Edition Page 133-135
ADR Resource Glossary of ADR Processes, Unversity of Missouri-Columbia School of Law GLOSSARY - http://mail.law.missouri.edu/csdr/adr_glossary.htm
Title: Frequently Asked Questions URL: http://www.cfdr.org/what_faq.htm Organization: Canadian Foundation for Dispute Resolution, Publisher: Canadian Foundation for Dispute Resolution.
Title: Other Dispute Resolution Processes
Organization: Mediation Information & Resource Centre
Synopsis:This short article outlines factors associated with ADR processes, and then gives a short definition of twelve different ADR processes such as arbitration, negotiation, and mediation. Publisher: Mediation Information and Resource Centre.
Title: WebLaw = Dispute Resolution by University of Queensland. URL: http://www.weblaw.edu.au/weblaw/display_page.phtml?WebLaw_Page=Dispute+Resolution
Title: Alternative or assisted dispute resolution
Adversarial Background Paper 2