Posted by / Tuesday, 9 August 2016 / No comments

Alternative Dispute Resolution

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ADR - “Alternative dispute resolution (ADR) includes dispute resolution processes and techniques that fall outside the government judicial process”. It is the term used for any process of resolving disputes that does not involve resorting to the courts of law.

Types of alternative dispute mechanism
ADR can take several forms but two of the most common methods are mediation and arbitration. In mediation, a neutral third person explores the interests of each party in a case, helps them to identify areas of agreement, and works with them to reach a solution they both will accept.

In arbitration, the neutral third person actually makes the decision for the disputing parties. This can be binding on the disputing parties if both parties agreed on that method beforehand.

ADR is often resorted to in resolving commercial disputes, matrimonial cases; property disputes labour disputes (arbitration), conflicts between landlords and tenants, conflict between neighbours, etc.

Cost is less
When parties in a conflict resort to ADR, they many end up not paying anything. In short, ADR entails lesser costs that litigation.

ADR is Speedy
One complaint often heard against the court system of delivering justice is that it is usually lengthy. It could sometimes take years before your case comes for hearing before a judge, much less obtain a verdict. Sometimes, such delays are due to deliberate delays by judges and lawyers.

ADR relieves the ordinary courts of work load
The courts are saddled with a lot of cases which makes the court calendar congested. The use of alternative dispute mechanisms ensures that the work-lord on the traditional courts is reduced.

There is much room for confidentiality under ADR
Arbitration, Mediation and other modes of Alternative Dispute Resolution are not so open to public scrutiny as one finds in court disputes. The hearings and awards are usually kept confidential.

More Peaceful way of resolving disputes
Alternative Dispute Resolution is more likely to preserve goodwill or at least, does not escalate the conflict, which is especially vital in situations where there is a continuing relationship.

ADR saves time  
Parties can avoid many of the preliminary steps required for a court hearing. This helps to reduce the protracted and repetitive litigation that is normally associated with normal court proceedings.

Reduces the work-load in courts
ADR provides an answer to the increasing caseload of the traditional courts. ADR relieves the ordinary courts of work load that would otherwise have been taken to the courts if there were no alternative dispute mechanisms.

There is confidentiality
In contrast to court hearings, arbitration and mediation are conducted in private and the decisions are confidential. Neither the reason for a dispute nor the as is upon which ON it is resolved need be made public.

There is flexibility in ADR
Formal litigation in court must follow strict procedural rules. Certain steps must be taken and the rules of evidence must be strictly adhered to. ADR procedures do not usually follow very rigid procedures. In other words, there is less formality.

Improves relationships
The use of ADR also tends to mend or improve the overall relationships between the contesting parties. This brings to mind Abraham Lincoln philosophy on ADR which states that “discourage litigation; persuade your neighbours to compromise whenever you can. Point-out to them how the normal winner is often a loser, in fees, expenses, cost and time”. The disputing parties leave with a better relationship than if the conflict is settled in a law court.

Cost benefits
Litigation in the ordinary courts can be very expensive. There is the payment of lawyers’ fees, court costs, experts’ fees, etc. Many alternative dispute resolution processes are cheaper and faster than the traditional legal process.

ADR can reduce stress
ADR is generally perceived as less stressful than law suits. The fact that an individual has a case in court and may find himself going to jail, exposed to public ridicule by the media, may be spending huge sums on a protracted court case, etc. keeps disputants tensed. Since such worries are non-existent or minimized in ADR, its advocates claim it is less stressful. ADR overcomes the emotional toll involved in resolving disputes through the usually avenue of litigation.

ADR protects the reputation of the two parties better than lawsuit
In a litigation or lawsuit, lawyers on both sides are usually at their best in making their opponents look stupid, unreliable, liars, etc. “The opposing sides in litigation are attacked and demeaned at every opportunity during the course of a lawsuit”. In such a case, whether you win or lose you may suffer a dent on your image/reputation. ADR saves both parties from such humiliation.

ADR may not be the best means of resolving issues
Since most ADR processes are confidential and the results or decisions are binding only on the parties to the agreement or award, ADRs do not appear the best means of resolving a dispute where the public has a very high stake and as such would want the issue to be publicized (e.g. an issue of environmental concern) or the outcome to become a precedent or lesson for others.

Parties may end up back in court
In some cases (e.g. in the case of a non-binding arbitration) you may end up in litigation. In such a case, you may have to spend time and money resolving your lawsuit through the judicial process.

Arbitrator are not compelling enough
One big limitation of arbitration processes is that, generally, arbitrators are better used in resolving disputes involving money. They cannot issue orders compelling one side to do something, or to refrain from doing something (also known as injunctions).

Sometimes there may be delays
Although generally considered to be speedier than court trials, when there are multiple arbitrators on the panel, finding hearing dates in long cases that may be suitable for all is sometimes difficult, and this may lead to delays.

It is difficult to overturn an unfair decision
In a binding arbitration, there are very limited avenues for appeal, making it sometimes difficult for an unfair or erroneous decision to be easily overturned.

Lack of precedence
Another drawback of arbitration is the lack of setting any precedent by the arbitration award. This is because arbitration awards are usually not reported. This usually does not bind any person other than the parties. Besides, arbitrators usually do not give reasons for, or explanations of, their award.
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