Alternative dispute Resolution

Alternate Dispute Resolution is a mechanism that was introduced to provide an alternative method to resolve disputes outside the actual courtroom.

The method closest to the official legal system is thought to be tribunals. Tribunals are exclusively judicial bodies that operate in a way which distinguishes them from courts. Tribunals are a branch of court system established by the Acts of Parliament to deal with disputes between the citizen and the state or between two individuals. Tribunals are composed of a legally trained chairperson along with two lay people who are experts and specialised in the fields. They are generally distinguished from the courts by their less formal procedure and by the fact that they operate in less specialized areas and their decisions are based on laws of a particular organization. If a case is dealt in first tier tribunal, the appeal will be made to the upper tribunal , then to the court of Appeal and then the supreme court. The administrative justice and tribunals council was replaced in 2007 and was set up under the Tribunals court and enforcement act 2007 which keeps the work of Tribunals under review and reports on the constitution and working of tribunals.

The main purpose of Tribunals was to take the pressure away from the courts of solving small disputes so more time can be spent on cases with greater need. Although , tribunals mirror the court system , they are informal , the cost is minimalist as no court building is required , the panel is cheaper to employ than the costs of judges used in the traditional court system , it is easily accessible , free from technicality , an expert is required in that particular field of dispute and as the decisions are not based on precedents , they are flexible. However ,the strict rules of evidence are relaxed as the proceedings are informal , wigs are not worn and the use of lawyer is not encouraged even though lawyers may sit as legally trained chairperson who is expected to take an inquisitorial approach.

Subsequently , Arbitration involves introducing a third-party known as an arbitrator into the dispute so that it can be resolved .this process looks very much similar to a court trial , both having an opening statement , testimony , evidence , witness , cross-examination , and closing statements. The arbitrator then closely evaluates the information and delivers a binding decision which is called an award and can be enforced through courts if necessary . In some cases , the parties may opt for a paper arbitration where two parties write down points they wish to raise and submit with relevant documents.

Arbitration is regarded as private procedure where the public cannot gain access to any information that could at all affect either parties or the arbitrator , producing safe and fair proceedings. In addition , as there are only 3 people involved , the dispute is resolved quicker compared to the cases that adopt the formal legal proceedings as professional representation is not needed. The use of arbitration is very flexible as the parties choose what suits them , this results in an informal procedure as the meetings are arranged in accordance with the parties’ schedule and geographic location. However , it could be suggested that because it so privatized , the public are denied the right to know any information that could affect them .  If a professional arbitrator is used , that will be costly . The rights of appeal are limited , if the matter will not resolve , then it will be necessary to go to court. In addition , if one party decides to challenge the decision made in the process , then it becomes time-consuming and costly to all parties as legal representation will be required.

Mediation is a further form of ADR which involves inviting a third person known as a mediator , as a means of expression , with no power to impose a resolution , helps the disputing parties to reach a mutually acceptable settlement . Mediators are individuals who are trained for negotiation , communicating the parties’ opinions. A mediator will not tell his view of the merits of disputes unless asked , which then becomes more of an evaluation exercise also aimed at ending disputes.

The process is such that the mediator opens the dialogue with parties . He encourages them to describe their issues and their opinions about how the dispute should be settled . This way the other party will be able to rationalise the problem that is coming in their way to settle the dispute .

Mediation can be arranged  within a matter of hours decreasing the costs . Further , litigation entails privacy issues where mediation is confidential and rather than having a winner/losing , there is a mutual agreement to where both parties occur a benefit. Mediation promotes communication and collaboration between the parties. It is based on commercial common sense and makes it easier for companies to continue doing business. However , if an agreement cannot be subdued by both the parties , then the process will be time consuming and very costly .

In addition to mediation , the process of conciliation has been introduced as a form of ADR . It’s advancement on mediation in terms of the third-party (conciliator) being able to suggest and enforce the grounds for which a compromise should be made . He identifies the objectives of the parties , conducts the proceedings himself by asking the parties to prioritize their objectives . He starts with a minimum concession then moves on to maximum .

Negotiation is a form of ADR in which the negotiator helps two or more people arrive at a mutually acceptable agreement . If the parties cannot , then their solicitors negotiate.

ADR is a great alternative to get justice as it has a major impact on the way disputes are resolved . It is encouraged by the courts and in some cases enforced.

 

Advertisements

8 thoughts on “Alternative dispute Resolution

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s