Alternative Dispute Resolution: Pros and Cons

Introduction

Solving disputes through Alternative Dispute Resolution is faster and more cost-effective. Alternative Dispute Resolution can solve conflicts without a trial imposed during the proceedings. Mediation, neutral evaluation, and mediation are used during Alternative Dispute Resolution. According to the research, almost 62 counties in New York State are using Alternative Dispute Resolution services to solve disputes relating to family and commercial law disputes (Chaturvedi, 2021). Alternative Dispute Resolution is characterized by various advantages and disadvantages enjoyed by both parties that conflict with each other. This paper focuses on the descriptions of Alternative Dispute Resolution and the advantages and disadvantages that are associated with this Alternative Dispute Resolution.

Mediation Process

Alternative Dispute Resolution contains the various methods by which disputes can be solved without trial. Three processes are associated with Alternative Dispute Resolution (Tatasciore and Crabb, 2003). The first process is the mediation process, where a neutral person, referred to as a mediator, assists the two parties in reaching a mutual agreement about the issue they are trying to solve (Standau et al., 2021). The two parties will finally settle the acceptable resolution of dispute by coming to a final decision. In the mediation process, the mediator is not the decision maker of the case but helps the conflicting parties to solve their disputes by themselves. The mediation process is applicable in solving commercial disputes relating to business partners who may be having business conflicts.

Arbitration Process

The other essential process is known as the arbitration process, where a neutral person listens to the arguments, analyzes the evidence presented by the two conflicting parties, and then decides on the outcome of these cases. In the arbitration process, as used in Alternative Dispute Resolution, the process is less formal than the trial because the evidence is always relaxed compared to when the case is handled under the trial (Standau et al., 2021). The two conflicting parties should accept the arbitrator’s decision as the outcome of the judgment (Tatasciore and Crabb, 2003). There is no point in appealing if the arbitrator’s decision does not favor one party. However, in some occasions, the parties may request a trial if the arbitrator’s decision does not favor them.

Collaborative Law Process

This problem-solving process allows the two conflicting parties with their lawyers to dissolve a marriage and reorganize the marital status without any complaints and waste of time. The collaborative process is based on three principles that govern this stage. The first principle states that a pledge is not considered to litigate a conflict during any trial (Suter, 2015). There should be a voluntary, prompt, good faith, and actual changing of relevant information to the court (Tatasciore and Crabb, 2003). Lastly, solutions should take into account the priorities of the children. In this process, as used in Alternative Dispute Resolution, the lawyers can share a commitment to cooperative principles. All lawyers have the professional role of representing their clients in court without any problems.

Neutral Evaluation

Neutral evaluation, as used in the Dispute Resolution Process, is similar to mediation and arbitration. However, in the case of neutral evaluation, a neutral person with the subject matter in the arguments represented is used to scrutinize the strengths and weaknesses of each side of the conflicting parties (Standau et al., 2021). After the subject matter hearing, they evaluate the most likely court outcomes to promote a settlement between these two conflicting parties (Tatasciore and Crabb, 2003). The neutral evaluation is done to provide planned guidance and assistance in reaching an agreement with the conflicting parties.

The Process of Parenting Coordination

The parenting coordination process mainly focuses on the child, but in this process, a trained and experienced personnel known as the parenting coordinator is used in providing the solution for the case presented. The parenting coordinator’s role is to carry out a parenting plan concerning the conflict that has been presented to be solved (Chaturvedi, 2021). This professional expert is allowed to make decisions prior to the approval of the two conflicting parties with the help of the court (Suter, 2015). The prominent role of this process in Alternative Dispute Resolution is to assist parents in solving their conflicts regarding the issues with their children more elaborately to promote healthy, safe, meaningful parental relationships.

Restorative Justice

The Alternative Dispute Resolution process is also involved with restoring the justice process. Justice restoration is a process that addresses incidences of harm. Disputes in which the stakeholders identify and discuss the effects and needs required to resolve these actions are always significant (Suter, 2015). It is essential to involve the unique controller process to solve the issues affecting the two conflicting parties (Standau et al., 2021). The officials from the court should appoint a neutral person to perform the roles of the conflicting parties during the trial (Tatasciore and Crabb, 2003). The neutral person should perform the activities such as overseeing the post-judgment activities, the conference cases, and the discovery issues.

Benefits of Alternative Dispute Resolution

The overriding objective demands that each case be dealt with appropriately with respect to the matter’s size, relevance, nature, and the parties’ financial status. Equally, it is a devised method of guaranteeing that the processes in the justice system do not result in a wrongful execution of justice. Justice in the legal systems is accomplished through the overriding goal, also referred to as the oxygen principle (Kellly and Slapper, 2012). The overriding goal demands that each case is dealt with appropriately regarding the claim’s size, relevance, difficulty, and the parties’ financial status (Suter, 2015). When making judgments, giving directives, and interpreting procedural procedures, the court should keep the overriding objective in mind. Additionally, the substance should precede technique (Kellly and Slapper, 2012). The ultimate purpose of this Act and its policies enacted under it is to assist the just, speedy, proportional, and cost-effective settlement of civil disputes regulated by the Act.

Alternative Dispute Resolution contains various advantages that make it enjoyable for the conflicting parties to use it in handling cases. These benefits include the flexibility of the process, time consciousness, and cost-effectiveness in nature, and the process also gives the parties control over the results that have been obtained (Jackson, 2010). Effective use of the Alternative Dispute Resolution processes can lead to greater satisfaction for all parties that are involved in the cases during the trials. The decision time is minimized, the lengths of the discussions are reduced too, and more productive results are obtained (Standau et al., 2021). Some overriding objectives characterize alternative Dispute Resolution; there are objectives applicable during the decision-making process to have productive information about the two parties (Suter, 2015). These rules are always procedural, with the overriding objectives that are used when analyzing the cases presented in the court. Equally, the Principles are structural, with the ultimate objective of allowing the court systems to address issues equitably and proportionately.

These objectives ensure that both parties have equal footing and are allowed to participate fully and give evidence to the neutral body responsible for solving these cases. The benefits of this objective are that it is cost-effective, and the amount involved is always less than other methods (Tatasciore and Crabb, 2003). It also provides fair judgments to the conflicting parties, and the outcome is full of satisfaction (Kelly, D. and Slapper, 2012). These rules apply in the court when exercising powers to seek an overriding objective (Jackson, 2010). The duties of the parties are to help the court with the overriding objectives to come up with a final decision that is used for judgment.

Resolutions Are Faster

The judicial system is overburdened with many cases that are presented to them in order to solve. Each case that is filed cannot have a trial at the right time due to the congestion of several cases (Tatasciore and Crabb, 2003). As a result, a court case’s trial may drag on for several years. Fast resolution is one of the advantages of ADR. After filing a lawsuit, a settlement or arbitration award may be made in a few weeks or months.

The Friction Is Less

After a court decision is made, one side is almost always left feeling let down, sad, furious, and even bitter. Every opportunity is taken during the ADR procedure to maintain goodwill between the parties. For instance, if a dispute over child custody is being discussed, the mediator or arbitrator will consider the connection between the parents and the kid’s well-being (Kelly, D. and Slapper, 2012). ADR can assist in maintaining a diverse range of relationships, as well as those between key stakeholders, employers and employees, and even board members of homeowners’ associations (Jackson, 2010). The difference in the client’s case’s result with alternatives to dispute resolution will ultimately depend on strategic timing, identifying relevant facts and legal issues, selecting the best mediator or arbitrator, and planning for all potential outcomes.

Not Bias

All cases undergoing ADR are presided over by a neutral third party. The impartial third party should be independent of all parties to the action and have no stake in how the case turns out. The judge is not chosen to preside in a court case (Suter, 2015). The judge has been chosen. This distinction is crucial because clients might choose an impartial third party with specialized subject-matter knowledge to facilitate or reach an informed resolution.

It Is Private

For the most part, court trials are public records and can be accessed by anybody. The alternative dispute resolution, however, is both private and confidential. When an arbitration award is granted, or both parties agree to an acceptable settlement via mediation, what transpired is not publicly available, even during a meeting (Kelly and Slapper, 2012). The sum of the judgment or settlement and the details of the comments given to the participants are all kept confidential. In conclusion, neither the date nor the decision of the Alternative Dispute Resolution will be known to the general public. High-profile clients may find that this level of confidentiality is particularly advantageous because it allows both parties to uphold their reputations.

The Resolution Cost Is Lower

Alternative conflict resolution is frequently far less expensive than a trial, which is another of its main benefits. An outrageous total cost, which includes court reporter fees, attorney fees, and costs related to printing and sending documents, can result from only the discovery process for a trial (Jackson, 2010). More significantly, a protracted court case may necessitate weeks of missed work for the parties, witnesses, and jurors (Chaturvedi, 2021). Alternative Dispute Resolution expedites the process because time is money.

Disadvantages

Arbitrators often only have the power to settle financial disputes. They cannot issue directives ordering one party to perform a particular action or refrain from taking it. The arbitrators are equally unable to alter property titles. Additionally, some protections intended to protect parties in court could not apply to ADR (Chaturvedi, 2021). These may include the permissive discovery rules applied by American courts, which make it extremely simple to obtain evidence from the other side in a legal dispute. In Halsey v. Milton Keynes case, the claimant filed a clinical negligence claim. The claimant’s lawyers constantly urged the defendants to mediate the case but continually refused to participate (Kelly and Slapper, 2012). The claimant maintained that although she had failed in her appeal, she was not obligated to settle all defendants’ charges due to their failure to mediate.

The fairness of ADR is questionable, unpredictable, and subject to inflexible mandatory arbitration; therefore, it is less considered by many. The claimant in Dunnett v Rail-track lost at first instance and sought permission to appeal. To prevent the necessity for an appeal, the court recommended that the claimant pursue alternative dispute resolution but declined to take part (Kelly and Slapper, 2012). However, the Court of Appeal failed to award costs and emphasized that if the parties decline the possibility of ADR when proposed by the court directly, they may have to suffer “uncomfortable costs repercussions.” Converse to the overriding objective of the judicial systems.

There is also little chance for judicial review of an arbitrator’s ruling. Although a sizable arbitration service may, if so desired, establish some internal appeals procedure, the decision is often final and binding and can only sometimes be challenged in court. This typically occurs when the first arbitration agreement invalidates (Chaturvedi, 2021). Because arbitration is a voluntary agreement between the parties, it cannot be enforced if one party’s assent was obtained by deceit or coercion. Additionally, the arbitrator’s ruling will not be upheld if it is blatantly unfair (Kellly and Slapper, 2012). It is challenging to live up to this ideal. The arbitrator’s choice was one that the court would not have made, hence it is

The Rationale of Alternative Dispute Resolution

The positive contribution of the effective use of Alternative Dispute Resolution has managed to reduce the costs and the damages that can arise in commercial disputes that are part of the business world today. The informal use of conflict resolution, such as arbitration and mediation, has been more productive in solving business cases than in courts. Alternative conflict resolution has allowed several disputes to be solved quickly and avoided the confidential information that may be revealed in courts (Chaturvedi, 2021). Mediation has been considered the quickest means of solving business cases and most cheaply. The Alternative Dispute Resolution.

Alternative Dispute Resolution has been successful for many companies while solving their business conflicts. Notably, Alternative Dispute Resolution based on mediation is cheaper than the court method (Chaturvedi, 2021). Most attorneys—and the businesses they represent—consider ADR a secondary option rather than the top or preferred way to resolve conflicts (Tatasciore and Crabb, 2003). These businesses use the process to resolve minor, unimportant disagreements, or, as in the electronics case, they give up on it when they do not get the desired outcome. In any case, they have not decided to make the legal department’s primary goals the avoidance and quick resolution of disputes.

The court system of solving conflict is rigid compared to arbitration; the litigation procedure is more involved since it entails adhering to the CPR rule book and civil court legislation, while arbitration rules are much simpler and fewer. There is no defined procedure in arbitration; instead, the parties agree on the terms of the settlement (Kelly, D. and Slapper, 2012). Many courts are also overloaded with many cases, increasing the pressure to solve many cases quickly and lowering their ability to provide quality justice to the offended parties (Chaturvedi, 2021). Since the judges may not have complete confidence in handling some cases, the use of arbitrators is seen as an excellent example because the level of expertise is very high, thereby boosting the confidence of the companies that would like their cases to be handled using the Alternative Dispute Resolution process.

There are potential losses that a party may incur in case they fail to follow the orders from the court after the final decisions. There can be a remedy if a party breaches the terms of the agreement. These situations are known as contract breaches, and identifying a breach is a crucial first step in asserting contractual rights (Tatasciore and Crabb, 2003). Any person or entity that enters into any contract with another party is liable for their obligations, which can generally be written or unwritten. Politicians, for instance, are legally obligated to serve all of their people while abiding by the law, but politicians may also be under an implied duty to make choices that would most benefit their most prominent financial backers (Blackham and Allen, 2019). It is nearly difficult to demonstrate the presence of these types of agreements, and such duties cannot be appropriately regulated (Suter, 2015). Judicial systems dating back to the Romans have afforded vigorous legal enforcement of binding contracts.

Attorney fees are one of the litigation’s most prevalent and essential components. These are the costs that are covered by the attorney in order to pay them back for the time and effort they invested in the case. Litigation costs may encompass a variety of expenses in addition to attorney and legal fees (Suter, 2015). Attorney fees are one of the litigation’s most prevalent and vital components. These are the costs that are covered by the attorney in order to pay them back for the time and effort they invested in the case (Chaturvedi, 2021). Litigation costs may encompass a variety of expenses in addition to attorney and legal fees, and they include the fee imposed on the filing and processing of the cases, fees charged on lateness to respond to the orders of the court, the travel expenses costs, and the costs that are associated with the documents.

Some cases are not handled in court; alternative Dispute Resolution may not be possible in solving this kind of case. Some cases should be heard in courts, while others should be solved using arbitration methods (Blackham and Allen, 2019). Some factors determine whether a case can be heard in court or solved using arbitration. According to prosecutors, those who aid the prosecution process, such as witnesses, should never be in danger (Blackham and Allen, 2019). The likelihood that one jurisdiction might offer a witness protection scheme while another does not may be one variable to consider when choosing the jurisdiction for prosecution.

Conclusion

To conclude Alternative Dispute Resolution, the arbitration procedure is the other crucial step, in which a third party, who is impartial, hears both sides of the issue, considers the evidence they have provided, and then renders a judgment on the case’s result. Because the evidence is always more relaxed than when the case is handled under the trial system, the arbitration process utilized in alternative dispute resolution is less formal than the trial. The process is defined by several benefits and drawbacks shared by both parties and at odds with one another. This essay is concerned chiefly with the descriptions of alternative dispute resolution and its benefits and drawbacks.

Reference List

Blackham, A. and Allen, D. (2019) “Resolving discrimination claims outside the courts: Alternative dispute resolution in Australia and the United Kingdom,” SSRN Electronic Journal [Preprint]. Web.

Chaturvedi, N., (2021) Alternate Dispute Resolution (ADR): Advantages & Disadvantages. Jus Corpus LJ, 2, p.766.

Jackson, R.M., (2010) Review of civil litigation costs (Vol. 2). The Stationery Office.

Kelly, D. and Slapper, G., (2012) The Overriding Objective. In Sourcebook on English Legal System (pp. 226-227). Routledge-Cavendish. Web.

Standau, T. et al. (2021) “A review on multifunctional epoxy-based Joncryl® ADR chain extended thermoplastics,” Polymer Reviews, 62(2), pp. 296–350. Web.

Suter, E., (2015) Unreasonable refusal to mediate and costs. Arbitration: The International Journal of Arbitration, Mediation and Dispute Management, 81(1). Web.

Tatasciore, N. and Crabb, S., (2003) Costs consequences for failing to participate in ADR. BRIEF, 30(6), pp.27-29. Web.