Historically, legal dispute resolution and protection of rights of citizens and enterprises have always been the responsibility of the strong and independent branch of the judicial system. Moreover, in any law-abiding country, there is need for properly organized and efficient court system. Accessibility to the courts is obligatory within the scope of constitutional, criminal, and administrative laws since the courts play a significant role in guaranteeing justice delivery.
However, litigation is often not indispensable or useful within the private domain including the issues under the regulation of the contract and civil laws. Therefore, the partners considered equal might have the chance to put to rest their emerging disputes at personal levels or by utilizing other formal ways of resolving disputes (Schmalleger 157). Presently, the use of out-of-court as a legal system is becoming common in the US as a way of resolving disputes.
Notably, these approaches offer alternative practices to litigation, which in spite of being important and expediency for communities, is too formal, costly, complex and time-consuming process of settling disputes. Therefore, there is need to find other means of handling disputes that people consider simple, less expensive, faster, and more efficient commonly identified as the non-formal justice system of legal dispute resolution (Palmer 102). These non-official prerogative approaches are also referred to as the alternative dispute resolution (ADR). Unlike the U.S. with extensive experience in the application of ADR, countries like Russia are beginning to institutionalize their ADR. As a result, the paper focuses on establishing the practices of ADR within the legal system in the United States.
General Idea of Dispute Resolution in the US
ADR is a way of resolving disputes/disagreements outside the courts, and some of its common means are arbitrations, conciliation, neural evaluation, mediation, and negotiations. With the growing lines and backlogs within the court systems, increasing litigation rates, as well as time delays that continue to affect litigants, the U.S. is currently focusing on strengthening ADR activities to ease the movement of court cases. However, some of these programmes are voluntary while others are mandatory in nature depending on the sensitivity of the case in question. While the common ADR are arbitration and mediation, negation is often the first attempt in addressing the disputes; nevertheless, it is a preeminent method of solving disputes (Sgubini, Prieditis, and Marighetto par. 5).
In the early 1960s, the American society experienced or went through an upheaval that was caused by the ADR of which the some of the portion reacted to the civil rights discord. However, in 1964, through the Civil Rights Act, the Congress was able to establish the Community Relations Service of the Justice System to help the courts in resolving communal as well as perverse racial disagreements/disputes.
Ford Foundation later formed the National Centre for Dispute Settlement together with the Institute of Mediation and Conflict Resolution to look into different approaches of resolving conflicts or disputations. However, the processes involved the court system, and, in 1976, the lawyers expressed the need to have alternative systems to reduce the ever-increasing expenses of addressing issues in courts and delays within the judicial systems. The Congress recognises ADR as a cost-effective alternative to the traditional method of dispute resolution. Enacting the Judicial Improvements and Access to Justice Act permitted the U.S. District Courts with the powers to submit their disputes to arbitration. The local rules with the states provide a wide range of DR methods (Nosyreva 75).
The judicial system of the United States is established properly to provide fair solution to the legal disputes. However, most people agree that taking the cases to court is quite expensive and time-consuming. Consequently, ADR presents the country with alternative methods of addressing these issues, making them gain popularity as channels of settling legal matters devoid of incurring additional costs of litigation or the exasperation associated with waiting for the date set by the judges.
Markedly, the alternative means of settling legal disputations have close relations with the principles used in the legal systems that insignificantly associated with and influenced by case law/precedent. Conflicts between people often arise irrespective of the existence of the legal system within the country; hence, the efforts of finding way out of the conflicts are natural to all the involved parties. The desire of settling the disputes require compliance with the law through establishing simple, lawful, and clear procedures to prevent confusions while seeking solutions to the problems in questions.
From this aspect, it is clear that the ADR is not simply a lawful system, but also a school of thought and philosophy, which can cause concession, agreements, as well as enhance non-violent means of resolving disputes. Notably, the ADR model has a psychological advantage that entails shifting from the stereotype of lawsuit to a prospect for utilizing stress-free, fast, more accommodating, as well as non-official means of resolving conflicts. Generally, it is reasonable to sum up that the substitute methods of litigation are common and cuts across the board, hence are applicable to any nation irrespective of the local settings or regulations applied.
ADR Methods Used In the US
The states mainly use three main types of formal ADR methods including mediation, arbitration, and negotiation.
Concerning mediation as an ADR method, a dispassionate mediator engage with the involved individuals with an aim of coming up with solution that meets their expectations. The law requires the mediators to be trained professions with the ability to assist the parties communicate and accept fair solutions of their problem. Nonetheless, the mediator does not have to force the solutions down the throats of the parties. If the entire process comes out positive, then the individuals to the mediation have to sign a lawfully enforceable arbitration pact that they have to live with its suppositions.
On the other hand, should the mediation fail, the said individuals will out rightly disagree, and then proceed with their row to a law court. As an informal alternative to litigation, the mediators must have the capacity to negotiate adequately and bring the parties in feuds together (Palmer 163). Markedly, the mediation process is applied extensively in varied case-types that range from juvenile offences to the federal administration appeasement, especially with the tribes of the Native Indian-Americans. In addition, the method has become an important method of resolving the disputes between the investors and their stockbrokers.
Notably, the rules that govern the meditation process have slight discrepancies from one state to another. Certain states in the US have explicit processes, anticipations for the certification, privacy, and ethical canons needed to direct the whole process. Moreover, specific federations excuse mediators from giving evidence in the suits or investigations they are presiding over. The main challenge of the mediation is that it only covers the actions and undertakings within the court structures. However, those professionals practicing mediation at the commercial and community levels outside the court arrangements might not enjoy lawful cover since the state regulations concerning lawyers have great difference from those protecting mediators.
Mediation is also conciliation or the conciliated negotiation. Nevertheless, conciliation lay great emphasis on the initial phases of the conciliation process, for instance in inaugurating the communication medium, creating contact between or among the disputants, and recognizing specific areas of joint agreement. In most instances, mediation often works when the involved individuals have long-term engagement.
Even though certain jurisdictions have ratified the acts and laws governing mediation, most of the negotiation proceedings are done out of one’s volition. Consequently, the independence of both disputants and their willingness to reach a compromising solution in good faith limit the impact the mediator can create. Thus, the mediator cannot go beyond the level of corporation of both parties in a bid to finding resolution to the problems (Brostoff and Sinsheimer 215).
Given that treaties or pacts arrived at through the mediation process contains the imprints of the involved parties, most people have a feeling that both parties are probable to adhere to the contents of the agreements than those forced on them by a court of law or an arbitrator. In different decision-making scenarios, there are instances where there are great interests between two parties. This situation necessitates the use win-win negotiation skills to help reach a compromising conclusion in which both parties feel satisfied.
Therefore, win-win negotiation strategies help in effective resolution of conflicts among interested parties. Mediators in a negotiation process have to employ the win-win strategy to ensure that the solution does not damage the relationship between the parties. The inclusion of a statement of agreement, the explanations of the deal, performance incentives, terms and conditions, as well as reference records bearing the signatures of both parties is fundamental to a win-win negotiation arrangement
Arbitrations are technically voluntary in nature. Besides, most people often agree to participate in the process even before the emergence of the disputes. For instance, most official contracts need that whenever a dispute not within the specks of the contract arise, there must be arbitration. Within the arbitration process, the involved parties agree to have their case heard through impartial person who in such cases issues the final and binding decision.
The arbitration process is similar to the conventional litigation system since an autonomous intermediary listens to the arguments of the involved parties and the obligatory decision reached is implemented by the judges. However, the major difference between the judicial system and arbitration is that in arbitration the disputants chose to settle any disputes in such manner even before the occurrence while in the judicial system the parties chose the method after materialization of the dispute.
Arbitrations occur in different forms: private and judicial. The commonly practised form of ADR is the private arbitration, which is a result of a settlement meant to adjudicate; the disputants draft it and get into a relationship after an anticipation that a disagreement is probable to occur but jointly agrees to settle the disagreement out of a court of law. Under private arbitration, there is identification of the person to act as the arbitrator.
However, the state laws do not require the arbitrator to hold a government position at any level. In its place, an arbitrator can be anybody whom the disputants see to have calmness, skills, and experience of resolving their disagreements reasonably. However, in some states, there are clear legislations prescribing the qualifications that one has to satisfy to be eligible to practice as an arbitrator (Schmalleger 177).
Markedly, the private arbitrators stem their influences from the agreements that might curtail their ability to settle the concerns at hand. Most states back the private arbitration settlements through the acts providing judicial executions that the disputants have to abide by upon full implementation. Private arbitration is the major methods used in settling the labour disputes. For illustration, managers and the employee unions are under obligations to add arbitration section in their official negotiations, commonly referred to as the Collective Bargaining Agreements (CBA). Markedly, the move is an indication that both parties are in agreement over arbitration of future complaints of the personnel over work security, working situations, and remunerations.
The judicial arbitration also known as the court-annexed arbitration is not a compulsory or mandatory type of settlement process; this implies that a dissatisfied disputant can decide to go to trials or live by ruling. The statute, regulations, and court rules often mandate the judicial arbitration (Ardagh 128). Most of these decrees mainly rule on disputes beyond the authority of the minor assertions court but fails to reach the needed sum by the civil court for court-martial.
For illustration, in the New York State, the claims between $3,000 and $10,000 need to be taken to judicial arbitration, which is not mandatory. In such cases, the non-binding arbitration are those in which the damage award could not be expected to exceed $100000.
Arbitration could be a simple version of trial that involves limited discovery and simple rules of evidence. Moreover, the arbitral panel heads and decides in the arbitration process. Notably, title nine of the U.S. Code creates acts that support the arbitration practice. However, such practices are pegged on full authority of the Congress, which it exercises over the regional businesses. Generally, in areas where title nine is applicable, its terms and conditions have powers over the state regulations. It is important to note that there are several state laws on the ADR with close to 49 states adopting the 1956 type of the Uniform Arbitration Act as part of their state regulations. However, with the revision of the Act in 2000, 12 states have been able to adopt it.
The United States’ judicial system suffers congestions due to the ever-increasing amount of cases reported. Therefore, the ADR methods play an important in reducing these congestions as they aim to settle the disputes outsides the courts. Negotiation is universal across all the methods since it applicable either primarily or secondarily. Should mediation method flop to attract the involved individuals, then they should contemplate going on with the process of settling the disputes through obligatory arbitration. The aim of every ADR method is to enable the disputants to look for the best means of settling their disagreements without going for litigation as the last resort.
Most people have disapproved the processes as time wastage program; they hold that the similar time can be used to pursue the entitlements within the civil law courts where the intercession activities play a central function. Besides, the judicial system offers protection to the litigants through panoply of the formal rights and rules. Even though ADR has been successful over the last 30 years, it is not a suitable choice for most complainants or concerned parties. Several people still reject these out-of-court methods since they lack evidentiary, adequate, and significant protections existing in the official litigation practice. In most cases, the ADR methods focus on the hearsay pieces of evidence, which the civil trials exclude.
Ardagh, Anne. “Repositioning the Legal Profession in ADR Services: The Place of Collaborative Law in the New Family Law System in Australia.” QUT Law Review 8.1 (2008): 122-132. Print.
Brostoff, Teresa, and Ann Sinsheimer. United States Legal Language and Culture: An Introduction to the U.S. Common Law System. Oxford, UK: Oxford UP, 2013. Print.
Nosyreva, Elena. “Alternative Dispute Resolution in the United States and Russia: A Comparative Evaluation.” Annual Survey of International & Comparative Law 7.1 (2001): 72-89. Print.
Palmer, Colin. Encyclopedia of African-American Culture and History: The Black Experience in the Americas. Detroit: Macmillan Reference USA, 2006. Print.
Schmalleger, Frank. Criminal Justice: A Brief Introduction. Boston: Prentice Hall, 2012. Print.
Sgubini,, Alessandra, Mara Prieditis, and Andrea Marighetto. Arbitration, Mediation and Conciliation: Differences and Similarities from an International and Italian Business Perspective. 2004. Web.