Law

LAW: ALTERNATIVE DISPUTE PROCESS Name: Grade Course: Tutor’s Name: (14, December, 2010) Alternative Dispute Process Alternative dispute resolution (ADR) is a term that is usually used to refer to various mechanisms that fall short of or offer another option to the full-scale processes of court. The term ADR is used to refer to arrange of various issues like: facilitated negotiations where direct negotiation between the disputants is often encouraged before other legal processes are considered and other mini-trials or arbitration systems that resemble the normal courtroom process (Definition from center for Democracy and Governance). These Processes include There are Binding and Non-Binding forms of Alternative Dispute Resolution. The non-binding ones include Negotiation, mediation, and conciliation programs and they depend on the willingness of the parties to reach a voluntary agreement. An example of a binding form is Arbitration. However, these arbitration programs are categorized two: binding or none binding. Binding arbitration resembles a judicial decision and the disputants are expected to follow the decision that is made by the third party whether they agree to or not while in non-binding arbitration the decision produced by the third party can be rejected by the disputants to negotiate, intervene, reconcile or decide on before the court takes action. Relevance of in ADR Even if the process of ADR is not a full and formal trial process, the skills of Advocacy are useful for their effectives. These range from successful preparation, to interviewing, to related skills in communicating, persuasion, and many others (Center for Democracy and Governance, 1998). This stems from the fact that whether, in ADR or in a Trial Process, a dispute has arisen between two parties, or exists between parties which dispute needs to be resolved and either a compromise reached or a decision to be made. The entire cycle of alternative dispute resolution starts from dispute prevention and ends up with litigation as follows. Dispute Prevention Negotiation: Any form of communication from one party to another for the purpose of arriving at a solution. It involves various elements such as Alternative, Interests, Options, Legitimacy, Communication, relationship, and commitment. The stages involved include pre-bargaining stage, bargaining stage, closure phase. Conciliation: a Neutral 3rd party comes in between them and understands each of the persons concerned, their interests and proposes a way forward. Different from mediation in that in mediation, the mediator only facilitates and does not propose what to do for the disputing parties (Ljcp, 2010). Mediation Ombudsman: situation whereby the disputing/opposing parties are given the option of being able to complain to a watch dog. Mini-Trial Arbitration. As is regulated by our Arbitration Act. Administrative Hearings,: includes panel of elders, tribunals and so on. Litigation Advantages of ADR A jury is not involved. So persons can get better compensation from their own bargaining processes. Juries are fickle and often can be biased so this is avoided. Lawyers and expert witnesses are expensive. Alternative dispute resolution gives the benefit of getting the issue resolved at a lesser cost ADR process is fast while trials take time and have no exceptions. Many jurisdictions takes before one even starts arguing and presents the case before a judge and gets a verdict delivered. The results can be confidential. Litigation is in open court and some issues could be too personal and embarrassing in court so privacy is still maintained. Disadvantages of ADR There is no guaranteed resolution. Only arbitration, as an alternative dispute resolution leads to a final concrete resolution. This means that one can invest a lot of time and finance in getting out-of –court solution to the dispute but in the end have to consult the court fro a solution (Center for Democracy and Governance, 1998). Given the fact that arbitration decisions are final except for few exceptions, and no one has the power to appeal against them gives it a weakness as court decisions gives a party a chance to appeal in a higher court. The confidential participation process of ADR appears like a weakness on its ability to pass affair judgment hence some parties would opt for court as on ‘just principle’ as they think it is cowardice to use ADR methods. Arbitration Arbitration procedure involves services of a neutral third person, called an arbitrator, or a panel, called an arbitration panel, handles the facts and evidence given presented by the parties and makes a decision. When choosing an arbitrator, one should consider should be given to the arbitrator’s standing, skill, training, areas ...