The use of alternative dispute resolution (ADR) methods has become more popular because this strategy enables people to get rapid and cheaper access to justice. Furthermore, these approaches help people restore their relations. In this case, one should speak about such techniques as negotiation, mediation, or arbitration.
However, it is important to remember that ADR tools do not always have a binding power, and they may not be applicable to a wide range of conflicts, especially those ones that can affect many stakeholders. These are the main details that should be discussed more closely.
At first, it is important to mention that the use of ADR methods is usually less expensive. This argument is particularly relevant if one speaks about negotiation. In many cases, this ADR approach helps disputants reduce expenditures such as the fees of lawyers (Vago 199). Furthermore, this form of interaction can be useful for avoiding delays.
This advantage is particularly important at the time when modern courts have to struggle with the increasing caseload. So, many judges suggest that the parties should consider the use of ADR since this approach can eliminate many bureaucratic difficulties.
Additionally, ADR methods often require the participation of an arbiter. This person may not necessarily be a lawyer, but in many cases, he/she acts as an authority figure for community members. The decisions of this individual are more likely to be accepted by disputants. This tendency can be observed in those communities in which religious leaders play an important role.
Additionally, very often parties prefer to use the services of a legal expert who can act as an arbiter. This person can help the participants predict the most likely outcome of the litigation. The services of such professionals can be critical when the parties want to preserve the confidentiality of their information.
Nevertheless, ADR techniques have considerable limitations. In particular, one should point out that disputants may differ in terms of the financial resources that are available to them. For instance, it is possible to speak about the conflicts between separate employees and organisations such as corporations that can spend millions on lawyers.
These organisations are more ready to go to the court. Furthermore, much depends on the nature of the dispute, itself. ADR procedures are not applicable to those situations when a person or a company is involved in illegal activities that can pose a threat to various stakeholders. This is one of the problems that should not be overlooked.
Moreover, these methods are not fully relevant to those cases when the two parties are no longer willing to continue relations with one another. Under such circumstances, the participants may decide to go to the court. Yet, despite these limitations, ADR tends to become a very popular substitute to litigation. This is why modern law students take various courses related to ADR (Vago 201). Thus, this trend is likely to persist in the future.
Overall, these examples suggest that modern people try to avoid litigation when it is possible. They act in this way because they do not want to deal with such problems as delays and excessive expenditures. Admittedly, ADR cannot be viewed as a universal solution to various conflicts. Nevertheless, such procedures enable people and organisations to avoid various bureaucratic difficulties related to legal procedures. Finally, these tools are important for securing the confidential information.
Works Cited
Vago, Steven. Law and Society, New York: Pearson, 2012. Print.
The existence of different disputes and misunderstandings in the modern world is impossible to avoid and coming out of the civilized society and ethical rules, which exist, the conflicts should be decided amicably. The Alternative Dispute Resolution Policy is provided in every governmental institution with the aim to improve the technique of the dispute decisions and to make the procedure clear and predictable. There is no universal and ideal system of decision making, and in order to give some evidence of the mentioned fact, the investigation of several Alternative Dispute Resolution Policies should be evaluated and compared in the following paper.
The distinctive feature of the Alternative Dispute Resolution is that it is “not a trial”, it may be defined as the “resolution to a dispute” (Atlas, Huber, & Trachte-Huber, 2000, p. 2). The main aim of the Alternative Dispute Resolution Policy is to make the participants of the dispute come to any agreement, and the policy is necessary in the cases of the governmental affair when all solutions should be evaluated and all the decisions weighted. The concrete procedure of dispute resolution is put in strict frames with the aim to give similar opportunities for all members of the conflict and to provide the decision-making according to the fixed structure.
Providing the comparison of some USA Government sites, the similarities and differences within these sites are going to be discussed and the analysis of these policies is going to be represented according to the consideration of Goldberg (2007). The Alternative Dispute Resolution Policies cannot be equal and similar in their issues as there are no similar governmental departments where similar opinions are provided (Dauer, 2004). The decision-making is based on the principles and the specifics of the governmental institution which provides the Alternative Dispute Resolution Policy.
The official sites of the following government establishments were researched and the analysis of their Alternative Dispute Resolution Policies was provided: U.S. Equal Employment Opportunity Commission, The Federal Service Impasses Panel, and U.S. Office of Special Counsel. The Alternative Dispute Resolution Policies of these sites are rather different, what is created by the different organization purposes.
Starring with U.S. Equal Employment Opportunity Commission (2007), it should be mentioned that the main form of the Alternative Dispute Resolution, which is used while deciding the contestable questions is the mediation, which means the “facilitative negotiation” (Stitt, 2004, p. 1). The process of dispute solution is provided with the help of the third neutral part, which aim is to solve the conflict. This third neutral party helps the employer and employee to resolve the existing problem and to reduce the costs for both.
The Federal Service Impasses Panel (2006) introduces their vision of the Alternative Dispute Resolution Policy, where the main device in the conflict decision is also mediation with the arbitration part or with the panel representative. In the case of the impossibility of the decision making the break is provided with the two days off and the conversation is continued within the closed doors. The very details of the discussion may vary and the decision about the details is left to the arbitrator of the case.
U.S. Office of Special Counsel (2008) introduces the Alternative Dispute Resolution Policy on its site with the description of the meaning of mediation, the procedure of how this mediation works in general and the information about advantages of the mediation as the form of dispute resolution with the answers to the most frequent questions.
To the point, mediation is not the only type of the alternative dispute resolutions and different sources introduce different information about the theme, but the main types are as follows, open door policies, ombudsperson, peer review programs, step grievance procedures, mediation and arbitration (DelPo & Guerin, 2007). The types may be introduced separately, as it is in the U.S. Equal Employment Opportunity Commission (2007) and U.S. Office of Special Counsel (2008) institutions, and may be mingled, as it is in the Federal Service Impasses Panel (2006) government institution. The difference is in the instruments, which are used to maintain the problem, but the responsibility for the fair decision providing is the same.
Analyzing the mediation in the Goldberg’s book (2007) the first part attracts attention as the timing, which should be present in the Alternative Dispute Resolution Policy of every governmental institution is not stated on the mentioned sites. The clients’ desires to take up the third party in the decision making are taken into account on all the sites. The sites do not contain the information about the ways how the cases can be distributed to the mediation and on what stage of case decision. The sites give free access to the Alternative Dispute Resolution Policy and do not limit it.
The information on the U.S. Office of Special Counsel (2008) is offered in the most advanced value, and visiting the site, all peculiarities of the procedure may be checked and developed. The most frequent questions are answered and the viewer should not search for the additional information and spare his/her free time. The discussed sites about the Alternative Dispute Resolution Policies are similar as the main form of the dispute decision is taken for the base, but at the same time the informative fullness is different. The less information is introduced on the U.S. Equal Employment Opportunity Commission (2007) site and the fullest information about the procedure may be found on the U.S. Office of Special Counsel (2008). The conclusion may be provided about the care and the attentive attitude to the clients and employees of the organization, which interests are usually advocated by means of the mentioned policies and the mediation method.
On the other hand, all the information cannot be provided on the site as mediation is creative process, which deals with the humanities, and the human factor is the most unpredictable (Fritz, 2007, p. 85). The main idea, which is presented on the discussed sites, fits the very definition of the mediation. The Alternative Dispute Resolution Policies do not introduce the very decisions to the eventual problems, as the main idea of the mediation is to give the opportunity for the compromising negotiations, to give the parties the opportunity to solve their problems and to be able to communicate on the equal terms (Breger, Schatz & Laufer, 2000, p. 436).
According to the Organization for Economic Co-operation and Development (2003), the sites of the official institutions should give the available information online about the cases which are on the discussion now, with the aim for the third party, OECD members in the case, to intrude in the discussion and to help to provide the right decision (p. 17). The measure should be provided as the mediation, as the form of Alternative Dispute Resolution, should be supported by the third part, which is not involved in the discussion and none of the parties is supported.
Two of the discussed sites are related to the employment area, and it is not surprising as the most frequent cases in the governmental administration are related to the labor theme, as the employer and the dismissed employee are unable to find the agreement without the third party intrusion (Estreicher, S. & Sherwyn, 2004). The disputes are based on the very reasons for dismiss, and the parties have absolutely different opinions about the discussed theme.
So, the Alternative Dispute Resolution Policies are very important issues in the conflicts decisions and become the guides and the supervisors in the process in order to provide the parties with the equal opportunities and fair decision. Mediation is the form of the alternative dispute resolution, which may be frequently used as the basic form of the dispute decision and the most reliable one. The sites of the governmental institutions in the obligatory form should possess the Alternative Dispute Resolution Policies and give all the necessary information, which may be required in this or that case. The Policy is not the guide to the decision making in particular, it is the scheme, the schedule, according to which the decisions should be provided.
Reference List
Atlas, Nancy F., Huber, Stephen K., & Trachte-Huber, Wendy E. (2000). Alternative dispute resolution: the litigator’s handbook. American Bar Association, New York.
Breger, M. J., Schatz, G. S., & Laufer, D. S. (2000). Federal administrative dispute resolution desk book. American Bar Association, New York.
Dauer, E. A. (2004). Alternative dispute resolution: law and practice. Juris Publishing, Inc., Huntington.
DelPo, A. & Guerin, L. (2007). Dealing with problem employees: a legal guide. Nolo, California.
Estreicher, S. & Sherwyn, D. (2004). Alternative dispute resolution in the employment arena. Kluwer Law International, New York.
Fritz, J. M. (2007). International Clinical Sociology. Springer, New York.
Goldberg, S. B. (2007). Dispute resolution: negotiation, mediation, and other processes. Wolters Kluwer Law & Business, New York.
Organization for Economic Co-operation and Development. (2003) Privacy online: OECD guidance on policy and practice. OECD Publishing, New York.
Stitt, A. (2004). Mediation: a practical guide. Routledge, Oxford.
The Federal Service Impasses Panel. (2006). A guide: To Dispute Resolution Procedures Used by the Federal Service Impasses Panel. Web.
U.S. Equal Employment Opportunity Commission. (2007). Federal Sector Alternative Dispute Resolution. Web.
U.S. Office of Special Counsel. (2008). Alternative Dispute Resolution (ADR). Web.
Alternative dispute resolution (ADR) known in some countries as external dispute resolution is the process that entails resolving disagreement outside the confines of the ordinary judicial system (Justus 1999, 12). These processes have been encouraged in recent times since they are generally cheaper and less time-consuming compared to the traditional court process. This paper seeks to define ADR; types of ADR; the Scott vs. Avery clause; the advantages and disadvantages of ADR.
Types of Alternative dispute resolution
There are three types of alternative dispute resolution techniques they include; Mediation, Arbitration, Collaborative law.
Mediation
In this technique an independent mediator works with the parties to come to a resolution ’’(Masden 2005,6). A mediator is a person who is trained to help dispute parties to come to a fair agreement, he/she must be of a character that is respectable by the parties. Mediators bear no powers to force an agreement on the parties. Upon reaching a fair deal “the parties will sign a legally enforceable mediation agreement to which they each agree to abide ’’ (Sizzler 2010, 242).If by chance the parties don’t come to a fair deal they “take their dispute to court’’.
Arbitration
Ideally it is a voluntary technique and people often agree on an arbitration process prior to the occurrence of a dispute. In arbitrations “the parties agree to have their case heard by an impartial person, the arbitrator, who issues a final and binding decision’’ (Carlton 2003, 200).Nowadays it is a requirement for some type of formal contract to have an arbitrator to resolve conflicts that may arise during the life of the contract.
Collaborative law
This is often used as an alternative to a legal divorce process. The couple agrees “to behave courteously and have their attorneys and outside consultants help them along the way’’ (Ray 1985, 5). It is unique in that unlike mediation and arbitration, there is no third party. The couple is helped to agree on issues such as children’s custody, division of property, and children’s visitation rights.
Scot vs. Avery clause
This is another name for the arbitration technique of dispute resolution; this name was adopted from the British case of Alexander Scott and George Avery who disagreed on a clause on their contract known as arbitration where they had agreed that an arbitrator would resolve any conflicts arising from their contract (Renoxs 2009, 135). Some of the judges in the case thought that the clause was an attempt to run away from the legal system (Alflexs 2009, 136). From the ruling in that case a “Scott v Avery clause’’ therefore is “an express and clear provision in a contract that refers any dispute to arbitration before any court action can be started” (Yart 1998, 3). An “award’’ is a decision made, written and signed by the arbitrator (Mars 2006, 6). It is final and binding to the parties.
Advantages of alternative dispute resolution to a small business
Efficacy
This is achieved by conflicts being resolved quickly and a good business relationship before the conflict is not injured (Jary 2007, 6). Since “time is money”, to a small business this mean means that there is no loss of revenue.
Costs
Court litigation processes are associated with high costs in legal fees that may not be sustainable to a small and growing business (Alfradol 2004, 45). Arbitration is a cheaper and more affordable alternative to the formal litigation process.
Privacy and confidentiality
An arbitration process ensures that the matter causing conflict between the parties is kept private away from the public (Toscnich 2006, 6). Crucial information is not leaked to competitors and the good image of the business is maintained.
Enforcement of the Award
The enforcement of an award is done in a manner that does not hurt the running of the business since a suitable timeframe is agreed upon. (Gabriel 2009, 34)
Disadvantages of alternative dispute resolution
Court rules are not observed
Since court rule is not strictly observed, the evidence produced cannot hold water and may be based on hearsay hence the judgment may not be fair to both parties.(Lynch 2004,213)
Precedents
Legal precedents are judgments made on previous similar cases; these are not observed since the hearings are not public. (Theodore 2005, 45) This means that the outcome of the process cannot be predicted by the parties.
Unfair awards
The general rules of natural justice are observed in alternative dispute resolution procedures, these leave room for the arbitrator to be biased when giving an award (Salama 1983, 45). Unfair awards can also result from the incompetence of the arbitrator; this can be avoided by stating the qualifications of a favorable arbitrator in the contract. (Evans 2006, 89)
Some cases cannot be arbitrated
Some countries limit the subject matter of cases that can be resolved using techniques alternative dispute resolution; these matters include criminal and intellectual property rights (George 2006, 45). Arbitration on some aspects of these cases is subject to approval by the court (Justus 2006, 56). Cases on Patent infringements upon completion of the arbitration process must be validated by a court of law. (Dogo 2001, 56)
Conclusion
Alternative dispute resolution techniques are the most efficient means of resolving conflicts since they are cheaper, flexible, less complex, and help retain the good relationship cultivated between the parties.
Reference list
Alflexs. Peter. “Mediation and the insolvency practitioner”. Insolvency Law Journal 17:10-22. 2010.
Alfrdol Redfern and M.Hunter. “Law and Practice of International Commercial Arbitration.” International Trade 4:6-8. 2004.
Carlton, Buhring-Uhle. “Arbitration and Mediation in International Business”. Business journal 43:205-300. 2006.
Dogo.Sherwyn. “In Defense of Mandatory Arbitration of Employment Disputes”. Disputes Journal 78:56-80. 2009.
Evans, Brunet. Critical Legal Assessments. Cambridge: Cambridge University Press. 2006.
Gabriel.Born. Commercial Arbitration”. The Law 43:45-51. 2009.
George, Born. International Civil Litigation in United States Courts.” Courts 4:5-10. 2006.
Jary lew. “Comparative International Commercial Arbitration.” Conflicts 67:23-30. 2003.
Justus, Astarita. “Introduction to Securities Arbitration”. Litigation 4:6-11. 2001.
Justus, Baldwin. “Litigants Experiences of Adjudication in the County Courts’’, Civil Justice Quarterly 45: 200-245. 1999.
Lynch, Jaocko. “ADR and Beyond: A Systems Approach to Conflict Management”, The Negotiation Journal 3:4-7.2004.
Mars, Malenge. The Permanent Court of Arbitration: International Alternative Dispute Resolution. London: C.cater. 2000.
Ray, David. Arbitration in international trade”. Trade 45:56-90. 1985.
Renoks, Dew. “Skills and Strategies for Practitioners”. The Mediator 100: 135-146. 2009.
Salama, Auerbach. “Justice Without Law?” Non-Legal Dispute Settlement in American History.London: Oxford University Press. 1983.
Sizzler, Zeno. Alternative Ways of Solving Conflicts (ADR)”.Conflicts 56:60-65. 2010.
Theodore Janet. The Common Law of the Workplace.” The Views of Arbitrators journal 34:25-67. 2005.
Tosnich.Varady. International Commercial Arbitration”. Arbitration 3:6-8. 2006.
Yart, Dezalay and G. Garth. Dealing in Virtue: International Commercial Arbitration and the Construction of a Transnational Legal Order. Montreal: J publishers. 1998.
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.
Mediation
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
Arbitration
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.
Conclusion
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.
Works Cited
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.
Sgubini,, Alessandra, Mara Prieditis, and Andrea Marighetto. Arbitration, Mediation and Conciliation: Differences and Similarities from an International and Italian Business Perspective. 2004. Web.
Today, more than ever before, a globalized world economy coupled with the convergence of technology has generated a framework through which business interests are conducted with little or no regard to geographical boundaries, distance, or physical presence. Traditional mechanisms of conducting business are still ongoing, implying that stakeholders are spoilt for choice when it comes to selecting the methodology to use. This achievement, however, comes at a price as demonstrated by the ever-rising number of conflicts of interests among individuals, groups, societies and states (Larson, 2010). To arrest the situation, a multiplicity of methods have been proposed and generally viewed to be effective in initiating ways through which the parties involved in a dispute can be reconciled. This paper purposes to critically evaluate the pros and cons of one such method – alternative dispute resolution.
According to Nabatchi (2007), alternative dispute resolution “…is an umbrella term for a wide variety of conflict management techniques and processes used in lieu of traditional judicial and administrative dispute resolution processes, such as litigation and administrative adjudication” (P. 646). This definition implies that alternative dispute resolution (ADR) does not in any way describe a single approach; rather, it is comprised of diverse practices that could individually or collectively be used to settle disputes among conflicting parties. The role of a professional third party is instrumental in assisting the parties to resolve their dispute.
In terms of benefits, a credible ADR process assists parties involved in a dispute to work through conflicting interests at a modest cost (Larson, 2010). It is a well-known fact that judicial litigation is a costly affair in terms of financial costs, not to mention the fact that judicial proceedings take a lot of time to conclude. Financial costs and time factors may impinge on the business interests of the parties involved, making them lose their competitive advantage in the market. A well-structured ADR process, however, can be concluded in record time, particularly if the parties involved engage the services of a professional third party and other intermediaries who attempt to endeavor to resolve the dispute from an independent, fair, and neutral perspective (Baum, 2010). Furthermore, according to Baum, “…arbitration is a cost-effective alternative to litigation because it does not have litigation’s rigid procedural formalities” (p. 924). Consequently, it can be safely argued that ADR is advantageous over other conflict resolutions methods such as judicial litigation when financial costs, time constraints, and procedural formalities are put into consideration.
A credible ADR process is also beneficial in that it reduces adverse impact upon the relationships of conflicting parties. Unlike in the formal judicial litigation where parties are expected to prove their case under the lens of largely inflexible federal laws, ADR offers a platform where the feuding parties can sit in largely informal round-table panels and work through their problems in an informal and conducive environment (Larson, 2010). More importantly, ADR provides an environment where parties can take positions or compromise in a spirit of give-and-take, therefore ensuring that the relationships of the conflicting parties are not adversely affected. Baum (2010) is of the opinion that ADR is a better process of settling disputes between parties due to its ability to offer relief and craft solutions that are beneficial to both parties. On the contrary, other methods of dispute resolution such as judicial litigation offer unsatisfying resolutions due to not only their ‘winner’ and ‘loser’ orientation, but also due to the fact that they follow regulations and precedents, thus unable to generate equitable and appropriate relief for the parties involved (Baum, 2010).
Another benefit of ADR is that the process provides conflicting parties with the flexibility to choose the intermediary who will ultimately settle their dispute. Unlike in judicial litigation where the conflicting parties must give over their control of the outcome to a judge or jury, the ADR process allows parties to choose a neutral third party who may serve their best interests since such an intermediary takes ample time to evaluate the facts of the case or the context under which the dispute arose (Baum, 2010). In most judicial litigations, the judge may be fully competent in the law but not essentially the particular field under which the dispute arose, not to mention that most judges do not have sufficient time to satisfactorily accustom themselves with the facts of the case under inquiry. In line with this observation, it is evidently clear that most judges in judicial litigation are unable to reach a level of expertise that is usually available when feuding parties appoint their own decision-makers, hence the need for ADR.
ADR, however, has its own limitations. One of the drawbacks is that ADR processes cannot in any way be a substitute for formal judicial proceedings. According to Brown et al (1998), “…ADR programs are instruments for the application of equity, rather than the rule of law, and as such cannot be expected to establish legal precedent or implement changes in legal and social norms” (p. 3). In addition, ADR fails to provide effective resolution of disputes in situations where cultural norms suggest a preference for formal, deterministic solutions, or where cultural values are discriminatory or biased to an extent that they would only be perpetuated in the ADR process. Still, the ADR process is largely ineffective in cases where one of the parties is disadvantaged and needs to institute rights in order to curtail power imbalances, or where one of the parties involved have the power to control the implementation of the decisions reached. As such, it can be argued that ADR processes are unable to correct systematic injustice, discrimination, or violations of rights among the parties involved. It is also disadvantageous to use the ADR process when the dispute cannot be effectively resolved until some structural changes are implemented. Lastly, it is inappropriate to use ADR process to determine multi-party disputes in which some of the parties do not participate, principally because most of the outcomes achieved by the ADR process are not subject to standards of fairness or legal precedent other than the acceptance of all the parties involved (Brown et al., 1998).
Reference List
Baum, C. (2010). The benefits of alternative dispute resolution in common interest development disputes. St. John’s Law Review, 84(3), 907-948. Web.
Brown, S., Cervenak, C., & Fairman, D. (1998). Alternative dispute resolution practitioners’ guide. Center for Democracy and Governance. Web.
Larson, J.S. (2010). Alternative dispute resolution in patent law: Considering the non-practicing entity and increased availability of declaratory judgment. Intellectual Property & Technology Law Journal, 22(12), 15-20. Web.
Nabatchi, T. (2007). The institutionalization of alternative dispute resolution in the federal government. Public Administration Review, 67(4), 646-661. Web.
The researcher aspires to start a Limited Liability Company with two other people. The researcher opts for a Limited Liability Company because of the benefits that accompany the business venture. In the course of the day-to-day business operations, businesses encounter various issues that require legal intervention. Business owners should decide whether to use legal or alternative dispute resolutions in resolving their disagreements.
In Limited Liability Company, owners should have abiding agreement on the terms of their engagement. Similarly, they should have agreements with vendors they transact with, in their daily business endeavors. The contracts should entail a clause that indicates the venue for litigation that is suitable for both parties. These agreements are important as they act as framework for resolving disputes.
Advantages and disadvantages of Limited Liability Company Over other legal Business forms
There are different legal requirement for different forms of business. In the United States of America, sole proprietorship business requires the following legal documents to operate. Sole proprietorship business should have form 1040, which contains Individual Income Tax Return. This form reflects the owner’s compliance in submitting taxes. Other essential forms include schedule SE for Self-Employment Tax, Form 4562 for Depreciation and Amortization, Form 8820 that include the Expenses for Business Use of your home.
Lastly, an employment form is required in case the business owner has hired people to assists in managing the business. Partnerships are required to posses all the forms for sole proprietorship. However, in addition, they should possess Schedule E for Supplementary Income and Loss, Form 1065 for Partnership Return Income and Form 1065 K-1 for partner’s Share of Income, Credit, and Deductions. Limited Liability Company operates like a partnership. However, business owners have limited liability and therefore, their personal assets are not at risk in case of any business liability or debt (Davidson, 2000).
The researcher would like to start a Limited Liability Company. Starting a Limited Liability Company will be easier for the researcher in raising the funds required to start it, unlike in the case of sole proprietorship form of business. The researcher will share in raising the capital that is required to start the business with the other five partners whom he aspires to join hands in starting the business. The business is likely to excel owing to the complementary skills of the three partners. Some of the two owners are accountants; one is an engineer and the other two a marketer and a specialist in hospitality industry. The combination makes the partnership excellent.
The five shareholders will combine their skills and operate the business efficiently. In addition, the three partners will first discuss before implementing important issues and arrive at an appropriate decision after appropriate consultation. The discussion of important issues affecting the venture will help the owners avoid making serious mistakes, as it may be the case in sole proprietorship. On the other hand, the shareholders are likely to encounter some challenges that accompany joint ventures such as disagreement. However, the shareholders will enjoy the legal immunity that accompanies Limited Liability Company. This is because in case of any business liability or debt the shareholders assets are not at risk as in the case of sole proprietorship or partnership form of business.
ADR method Most Appropriate for Resolving the Company Disputes
In partnership and limited Liability businesses, a memorandum of understanding or a legal agreement form is required to specify duties and responsibilities for each partner. In course of the day-to-day business operations, the shareholders or business partners encounter various disagreements that require legal or alternative dispute resolutions. There are four kinds of ADR, which are arbitration, mediation, conciliation and Negotiation.
Conciliation is a method of resolving conflicts where the disputing persons use a conciliator who meets with the concerned persons separately and facilitates communications as well as looking for appropriate solutions for the disputing parties. Mediation on the other hand involves a third party who acts as a mediator. The mediator facilitates the discussion in a comportment, which addresses the parties’ issues. Negotiation is the process whereby two parties try to reach a compromise, resolve a dispute or reach an understanding through a dialogue. Finally, arbitrary is a legal form of resolving conflicts outside the court.
An arbitrator assesses the proof presented by the parties engaged in the conflict and makes a decision, which is abiding and legal. Amicable dispute resolutions are imperative for the success and future sustainability for business entities. Thus, business owners should be knowledgeable on when to use ADR or legal mechanism in managing business disputes (Martin, 2007).
Partnership has legal agreement that outlines how decisions are arrived at, profit and losses shared, strategies to resolve disputes, how new partners will be incorporated, as well as the steps to be followed in dissolving the partnership. However, in case of disputes the partners will opt to use ADR to solve their disputes. The partners will prefer use of negotiations in resolving the dispute as every partner will feel comfortable working with the rest once the disputes are resolved, unlike other means such as arbitrary that are legal abiding and decision arrived may not favor future cooperation (Kubasek, Browne, Herron, Giampetro-Meyer, Barkacs, Dhooge & Williamson, 2012).
Litigation Venue
In the contract that the Limited Liability Company will engage with its vendors, the contract will have a clause that specifies the venue for litigation as the court that specializes in dealing with business disputes. This clause will make it possible for the court to make a competent ruling where every party involved will be satisfied with the court decision. Similarly, the clause can consider the venue as the county where the defendant does business. The later clause will make it more convenient for the defendant to avail himself or self during the court proceedings.
In conclusion: Various legal forms of business have diversified benefits. Limited Liability Company is the best legal form of business to start, as the shareholders’ assets are safe from business liability or debt. Sole proprietorship and partnership are not appropriate business venture because in case of any business liability or debt, the owners’ assets are at risk. Shareholders should engage in legally abiding agreements between themselves, as well as with their vendors to provide a platform for resolving the differences.
The contracts should specify the venue of litigation that is most suitable for all parties involved. In case of any disagreements, the owners and vendors should first opt for ADR before contemplating pursuing legal lawsuits. Some of the ADR solutions that they can opt entail negotiations, conciliation, arbitration and mediation. Negotiation is the most amicable ADR strategy that promotes future cooperation, as every party has an opportunity to negotiate his/her position in reaching a compromise.
Reference List
Davidson, P. (2000). Forms of Business Organizations. New York: Prentice Hall.
Kubasek, N. K., Browne, M. N., Herron, D. J., Giampetro-Meyer, A., Barkacs, L. L., Dhooge, L. J., & Williamson, C. (2012). Dynamic business law (2nd ed.). New York, NY: McGraw-Hill/Irwin.
Martin, J. (2007). Alternative Dispute Resolution. New York: McGraw-Hill.
Plessy v. Ferguson approached the Fourteenth Amendment literally, distinctly emphasizing “equality” in their separate but equal approach; it was Constitutional, but also politically beneficial to the white majority. Brown v. Board of Education occurred in a different socio-political climate which presented evidence that highlighted that the “equality” promoted by segregation laws was not that way in practice. The Supreme Court used data collected by psychologists Kenneth and Mamie Clark that demonstrated the negative impact of segregation on the psyche of African American children, and other evidence suggesting underfunding, overcrowding, and “inherently unequal” conditions in black schools – leading to the overturning of Plessy (“Brown v. Board of Education (1954)”).
Although law is meant to be a set of enforceable rules, it cannot predict every possible situation nor are all laws going to be equally applicable after passage with time as society, technology, and other aspects of the status quo evolve (Cheeseman). Flexibility of the law is a complex legal debate, but a large majority of scholars and potentially the Founding Fathers, believed that the law can and should adapt, thus the purpose of Constitutional amendments and the Supreme Court, to set new precedent based on the ongoing situation in the country and realities of social relevance.
Negotiation is the simplest of the ADR methods, a procedure of discussion between parties to come to an amicable resolution or settlement that can be then agreed to in a legal form (such as a settlement agreement) approved by a judge. Mediation goes a step further in the negotiation process by inviting a neutral third party to assist disputing parties in reaching a settlement if they are unable to do so on their own. Arbitration consists of selecting an impartial third party that examines the facts of the case and decides the dispute. Arbitrations are more complex and formal and are usually included preemptively in the contract and are guided by specific rules. Arbitrations can be binding as the decision is final and non-binding with the possibility of appeal to legal courts (Cheeseman).
ADR methods vary in complexity and ramifications. A negotiation is largely voluntary, and any side may choose to walk away and begin legal proceedings. Meanwhile, arbitrations take time and the decision of the arbitrator, even if its non-binding, will be presented and likely influence the court. Business disputes are potentially highly technical and rely on UCC which is rather rigid on many issues, thus it is best to resolve the issue before trial, particularly for the side in violation. Arbitrations also offer other elements that businesses value including speed, flexibility, and confidentiality (Cinotti and Stein).
International treaties the likes of TRIPS and agreements under the WTO and the World Intellectual Property Organization (WIPO) are existing and being enforced. However, the issue is complex and has become increasingly political as well in recent years, making current agreements signed approximately 20 years ago significantly outdated in the current intellectual property rights (IPR) status quo. One major issue is that patents and some other forms of IP are country specific. Therefore, a U.S. based patent does not guarantee protection elsewhere.
Most disputes by businesses must be resolved at the local level in the country where IPR are being violated. Many countries are not keen on enforcing IPR legally, either for political or economic reasons. There is virtually no means to enforce rulings on IPR unless the country itself does it locally. The best approach would be to implement new strategies that promote a strong global IPR regime, which would particularly put pressure on countries that intentionally violate IP (i.e. China) and assist developing nations in technical efforts of building IP infrastructure – driven altogether by innovation. This should be supported by robust legal frameworks internationally that allow for greater inspection and enforcement by arbitrations, including for violations of IP even at the local levels and support for businesses beyond transnational corporations (Ezell and Cory).
The wording of the language in the Walmart court decision does reflect the Standards for Suppliers section of the company contract. In the contract, the wording suggests that Walmart has the option to inspect and observe and cancel orders or terminate contracts if discrepancies with local regulations are found. The workers never had a case against Walmart because workers were never an active party in the contract, and incidental beneficiaries have no rights to enforce or sue under other’s contracts (Cheeseman). In order to make the workers the intended beneficiaries of Walmart supplier contracts, the wording must directly state that if Walmart and its suppliers do not fulfill obligations regarding local labor laws, employees are eligible for compensation. Only by directly stating workers as a party in the contract, do they become intended third-party beneficiaries.
Monetary damages are most common for breach of contract. These include, compensatory damages compensate the nonbreaching party for the loss occurred due to the breach, restoring the benefit that would have been gained if the contract were fulfilled. Consequential damages are foreseeable damages outside of the primary contract damages that can be recovered by the non-breaching party, but contracts may have a disclaimer preventing such action (Cheeseman).
Monetary rewards may not always provide sufficient relief, resulting in equitable remedies, which are actions that a court can force upon a breaching party. Equitable remedies usually occur in egregious violations of contract or when consequences of the breach have far-reaching effects that monetary damages may not compensate. A specific performance remedy forces the breaching party to perform the act outlined in the original contract. This may include actions such as delivering goods paid for in the contract or fulfilling a sale (such as a court judgement to sell property). An injunction is a court order which prohibits a party from performing a certain act, which has been demonstrated to cause irreparable injury to the plaintiff party. Injunctions can be used in aspects such as employment where an individual is prohibited to work for a competing organization or as common in employment contracts, within a certain distance (Cheeseman).
The CAN-SPAM Act attempts to regulate marketing and spam emails and messages on a federal level. In reality, many businesses send marketing emails that are considered spam, but these are allowed if following strict rules outlined in the law. However, there are a large number of spam messages received by third parties with malicious intents such as fraud, malware, phishing, or simply false or manipulative marketing. The CAN-SPAM Act is weak, particularly in the modern environment with almost two decades since its passing, it is unable to adequately regulate online spam. It does not provide civil right of action to individuals, does not regulate international emails, and largely offers very little protection (Cheeseman).
Although Facebook and other platforms have utilized CAN-SPAM to get major legislative wins against spammers (albeit unlikely to collect the multimillion-dollar compensations), the court decisions are largely ineffective against individual malicious parties. Official businesses attempt to comply with CAN-SPAM to avoid lawsuits, but the large issue remains with individual spammers who use other illegal tactics such as hacking Facebook accounts or creating hundreds of fake emails to generate spam. The true nature of spam is that it is difficult to identify, track, and prevent under the current legal regulations (Chowdhry).
Common law of contracts is developed from court decisions, usually at the state level that became precedent for later rulings. Although general principles remain, there are important variations. The UCC was created with the sole purpose of unifying and creating a consistent legal base for commercial law (including contracts) among the 50 states. Elements such as employment, insurance, real estate, intangible assets, and service provision are governed by common law of contracts that is based on case law rather than a uniform code (“Common Law and Uniform Commercial Code Contracts”).
The UCC places the risk of loss of goods on the party that is most able to bear the risk or insure against it. The UCC is typically used for any disputes, unless there is an issue that is not included, at which point the common law of contracts comes into play. The UCC had the objective to unify commercial codes specifically for sales and leases which often occur on an interstate basis, thus eliminating the confusion for commercial businesses (Cheeseman). The UCC is more rigid than common law on a variety of aspects such as offers, performance, warranties, and other general terms of contracts which promotes the objectives that the UCC is meant to achieve as to ensure consistency and stability for those engaging in commercial sales across the country.
The rationale behind the entrustment rule is the principle of estoppel. The rightful owner is stopped by his own acts from asserting the title if given the merchant the usual evidence of title or apparent authority to dispose of it. It is in place to protect the good faith buyer who had no knowledge that the entrustee had no right for sale. Unless the original goods were acquired by theft, then the original owner has no claim. Deference is given to the buyer because UCC rules state that unless there is a specific contractual agreement, the title passes to the buyer once the good is physically delivered or purchased (Cheeseman). The logic behind this ruling likely assumes that the entrustor is aware of risk when transferring the good to a merchant dealing in that kind of good. At the same time the buyer is protected as they conduct a purchase of good faith unaware of such potential risks.
A breach of contract occurs any time when a party in the contract does not perform to the terms that the sides agreed to entering the contract. In breach of contract, typically the plaintiff is only award compensatory damages, or money damages suffered as a result of the loss of the value of the contract. Courts do not assign punitive damages due to the assumption that parties enter into a contract aware of any possible risk that can be undertaken in the agreement and with good faith that the contractual obligations will be fulfilled (Cheeseman).
However, the UCC allows for parties to agree in advance in the contract as to what damages must be paid upon breach, known as liquidated damages. Liquidated damages are valid if reasonable that the breach will cause harm or create situations where proof of loss or adequate remedy is difficult to obtain (Cheeseman). However, it is up to the court whether to consider this clause, evaluating whether the liquidated damages clause is considered as punitive damages.
Works Cited
Cheeseman, Henry R. Business Law (10th edition). Pearson, 2018.
Chowdhry, Amit. “Facebook Obtained Nearly $2 Billion From Legal Judgments Against Spammers.” Forbes, 2014, Web.
“Common Law and Uniform Commercial Code Contracts.” Lumen, 2020. Web.
Ezell, Stephen, and Nigel Cory. “The Way Forward for Intellectual Property Internationally.” Information Technology & Innovation Foundation, 2019, Web.
“Punitive Damages.” Cornell Law School, 2020. Web.
The environment in which businesses operate is very complex and dynamic. Thus, more often than not, disputes between businesses and parties usually arise. The most common type of conflict or dispute in the corporate world is usually on contracts. This may be manifested in parties reneging on the terms and conditions of the contract signed after discussion and agreement. In their bid to maximize profits which is usually the main purpose of them being set up, businesses across the continental divide usually enter into contracts with other parties. These parties may include individuals, group of individuals or other businesses. In most countries, such as the United States of America, United Kingdom and United Arab Emirates (UAE) among others, there are laws which give clear guidelines on the signing of contracts between parties. Moreover, these laws also give guidelines regarding the resolution of conflicts that may arise from signing of such contracts. While some of these countries such as the United States and the United Kingdom recognize contracts under specially formulated contract laws and also under the common laws or jurisdictions, others like United Arab Emirates recognize contracts under some chapters of their laws, penal codes and the contractual laws of other foreign countries. The contractual conflicts arising in the corporate world are usually solved in a variety of ways with the most common being courts of law, mediation, direct negation between the conflicting parties and arbitration.
Conflict resolution is an integral part of the corporate world aimed at resolving differences, commonly referred to as disputes, between parties. Disputes arising are usually resolved by the method stipulated in the clauses touching on conflict resolution in the contract agreement. Thus, it is imperative that parties in any contract read, discuss, and understand and agree on the conflict resolution clauses in the contract agreements. This is because this can be the difference between winning or losing in any contractual conflict that might arise. Conventionally, many people go for courts of law. However, over the past years the use of arbitration has gained popularity in the corporate world and other parts of the society where conflicts are common phenomena. This can be mainly attributed to the numerous advantages that come with arbitration as avenue for conflict resolution. Being an alternative dispute resolution avenue, arbitration uses third parties whose decisions which are commonly referred to as award, are legally binding to both parties in the conflict. Even though carried outside law courts, the neutral arbiters arrive at their decisions using evidence deduced from expert analysis of the terms and conditions of the contract stipulation in dispute. These advantages far much outweigh the disadvantages and the use of courts of law. In my current position, I would always encourage my company to choose arbitration over courts of law solve any conflict that may arise.
Since commercial transactions especially those of international nature are of complex nature, there is need for solving the disputes that may arise in a manner which is convenient for all the parties involved. The convenience in terms of time during which the arbitration can be carried out and the final decision made. This is because the arbiters are not grappling with numerous cases to deliver judgment on like in the case of courts. Moreover, the parties have the convenience of choosing their arbiters with the third being chosen by the arbiters themselves. Though the decisions made are legally binding to all parties involved in the conflict, the language to be used during the arbitration process is chosen by both parties. The parties also have the opportunity to present their grievances in a more open manner compared to the court system where formality is usually overemphasized. The convenience also extends to the venue in which the arbitration process is to be carried out. This is unlike in the court system where the hearing is always done in the court where the case was filed which in most cases may be inconvenient for many business especially international businesses. However, the language to be used, composition of the arbitration tribunal, time of arbitration and location of the arbitration proceedings should clearly stipulated in the clauses of the contract agreement. These are usually contained under the clause titled “Dispute Resolution” or simply “Term and termination”.
The evidence provided before the arbitration tribunal is usually presented by experts who are usually neutral. This coupled with the expertise and professionalism of the arbiters, ensures that the decisions or awards delivered by the tribunal is usually accepted. The decisions are also legally recognized, enforced and protected by the “New York Convention” of 1958. Some of the institutionalized arbiters used in solving international commercial disputes include Stockholm Chamber of Commerce’s Arbitration Institute, World Trade Organization (WTO), ICC International Court of Arbitration and International Chamber of Commerce. Together with other arbiters, their proceedings can be sped up thereby leading to shorter time solving the dispute. This is unlike in the courts where everything has to be done according to the books hence take a longer time to reach at the same decision. The shorter period for resolving the dispute usually helps in cutting the costs of the conflict resolution process. Moreover, the use of such institutions with judicial powers helps in reducing chances of the parties going to the courts to seek legal redress of the dispute. Moreover, since most of the business transactions and contracts are of private nature, the use of arbiters usually offers a confidentiality level that is rarely or hardly found in the judicial system. Unlike the publicity that is usually associated with judicial systems, the privacy of the arbitrational proceedings gives the parties to talk openly in a more informal manner hence providing evidence without holding back any important detail.
While choosing the kind of arbitrator in any dispute, it is important to first determine the nature of the dispute. However, it is important to choose an arbiter whose credibility is not questionable and has local and international understanding of laws governing contracts and general laws with specialty in the law governing businesses. Due to the international nature of most business disputes due to the globalization of the business environment, I would prefer an international arbiter. Such an arbiter with global view of issues would argue my case effectively from an international perspective. This will also help in eliminating the chances of the arbiter having any personal ulterior motives while presenting my case. An international arbiter has high chances of being neutrality of viewpoint while reviewing my case. If arbitration fails, there is always the option of using mediation and direct negotiations which do not the courts of law. Moreover, courts of law can also help in resolving disputes.
The presence of law reflects human civilization. Initially, it was survival of the fittest where strength determined the outcome of a dispute. However, evolution in society brings about changes that also affect ruling principles while archaic laws are supplanted by progressive social law. Thus, the settlement of disputes becomes a critical issue in society. Progresses demand that society should become more rational and embrace a sense of fairness (McManus & Silverstein, 2011). Reasons and values rather than power become the norm. These changes give opportunities to various methods of alternative dispute resolution. Thus, the emergence of alternative dispute resolution reflects evolutionary developments in society.
The alternative dispute resolution (ADR) is a term that is being used to capture a wide range of dispute resolution systems that are alternative to, or short of the normal court processes, or simply minitrials. Thus, alternative dispute resolution could be described as out-of-court settlement through mutual consent of the parties involved. In this context, alternative dispute resolution can reflect all forms of assisted settlement negotiations that involve engaging disputants in direct negotiations among themselves before any other legal process can be considered. It is a form of arbitration with certain characteristics observed in courtrooms. ADR is a form of intervention developed to assist communities to manage their conflict or tension. From a general perspective, ADR reflects various forms of negotiation, conciliation, mediation, or arbitration mechanisms.
Negotiation mechanisms provide opportunities to encourage and assist direct engagement of parties to a dispute, without involvement of other third parties. On the other hand, conciliation and mediation mechanisms are also like negotiation, but they bring a third party to either mediate or reconcile disputes on specific issues of the matter. The roles of conciliators and mediators could vary significantly but could be as simple as facilitating communication, or take a direct role such as structuring of a settlement. Mediators and conciliators lack any authority to rule on a settlement or decide on the settlement. Arbitration mechanisms allow a third party, the arbitrator, to make decisions on settlement of disputes.
The US, used in this thesis for illustration, is known for its robust and propensity for resolving conflicts and lawsuits but often resort to alternative dispute resolution outside the formal court system using alternatives of arbitration and mediation. Increased use of alternative dispute resolution in the US and other parts of the globe can dramatically improve the pace and quality of social justice delivered. It is imperative to recognize that applications of alternative dispute resolution differ widely across the US. McManus and Silverstein (2011), for instance, noted that nearly 11% of civil cases in Northern California were resolved through mediation, New York only settled 2% of the cases using the same mechanism while the number is even low in Europe (0.5 percent).
A Brief History
McManus and Silverstein (2011) traced the origin of ADR to the common law tradition found in the English law system. In fact, they show that as early as the Norman Conquest, the use of ADR was already adopted to handle certain private wrongs. While this background is necessary, the essay will focus on a more robust use of ADR in the US.
It is observed that the US actively adopted the use of alternative dispute resolution in 1960s during the heightened periods of civil rights movements (Marcum & Campbell, 2009). ADR was considered as a potential solution to increasing court backlogs, as well as an appropriate technique for disputes related to natural resources and the environment. In the year 1985, an order originated from the Attorney General’s office indicating the relevance of ADR in reducing time and cost of civil litigation. It did not take long before the Department of Justice also expressed its support for ADR through the Congressional statement. As a result, the Congress enacted the first ADR law in the year 1990.
Multiple initiatives prompted by the Congress and the government have facilitated the use of alternative mechanisms to resolve disputes, specifically in workplaces using the Executive Branch (Rasnic, 2004). The period of the 1990s showed significant developments for ADR as the Congress enacted three critical statutes, including the Administrative Dispute Resolution Acts (1990 and 1996) and the Alternative Dispute Resolution Act (1998). These statutes collectively focused on encouraging different agencies to develop policies that facilitate the adoption of alternative dispute resolution across a wide range of decision-making processes. At the same time, they also stated that the federal trial courts had to make ADR choices available to conflicting parties (United States Office of Personnel Management, n.d). The enacted initiatives consisted of “the Civil Rights Act (1991), the National Performance Review; Executive Order 12871, Labor Management Partnerships; and the Equal Employment Opportunity Commission’s regulations” (United States Office of Personnel Management, n.d).
Following these developments, scholars have attributed changes in dispute resolution in workplaces to various mechanisms of resolving conflicts (Colvin, 2012). Colvin (2012) has noted that such practices used at workplaces between disputants go beyond individual issues to account for the broader employment relations.
Types of ADR in the US
Given the flexible arrangements made by disputants, ADR consists of several forms and types in the US. These forms and types range from formal, quasi-court systems to more informal, out-of-court conference room negotiations. Notwithstanding each of the forms, ADR has been able to offer disputants in the US several mechanisms to get out-of-court settlements of disputes. Generally, three main categories of ADR can be found in the US. They include evaluative, facilitative and adjudicative.
Adjudicative ADR
This form of ADR involves a quasi-judicial facilitator referred to as the neutral – the decision-maker and the adjudicator. Disputants prefer this mechanism because of the involvement of an outsider, an impartial third party. The neutral would facilitate negotiation outside the court. The decisions reached could differ, including binding, non-binding or advisory (McManus & Silverstein, 2011). Adjudicative ADR consists of several forms. First, arbitration involves one or three arbitrators. Arbitration is useful in cases where disputants cannot agree on facts of the case or in cases involving money. Second, neutral fact-finding is applicable for cases in which disputants disagree on facts or technical expertise. In such situations, a third party is necessary to conduct analysis and determine underlying issues of the dispute.
Evaluative ADR
Evaluative type of ADR involves the use of lawyers and litigants who give their views on a given dispute and get feedback on strengths and weaknesses of their demands and arguments (McManus & Silverstein, 2011). In most instances, disputants are not yet interested in discussing settlements and, therefore, an evaluation approach offers a basis for every party to determine the bargaining power, reinstate and assert their specific viewpoints and dismiss any unrealistic demands and expectations. Evaluative ADR involves peer evaluation. A neutral attorney hosts attorneys for conflicting parties to present their respective cases. In most cases, the panel of attorneys might provide recommendations to allow parties to develop their arguments, assist parties to identify issues not previously discussed and provide settlement options. While parties may fail to reach an agreement, the recommendations reached will be used to guide future deliberations. Another form of evaluative ADR is the lay evaluation or summary jury trial. Attorneys from warring parties present their arguments to jurors as opening arguments, a single witness is used to provide a summary of the evidence and then closing arguments are made. Based on this, the ‘jury’ reviews, gives the verdict, and allows the panel adequate time to poll. The proceeding gives the parties a glimpse of how a real jury may resolve such issues. The evaluative ADR also consists of judicial evaluation, which is almost the same as lay evaluation. In this case, however, a retired judge takes the place of a jury. The judge offers feedback to the parties based on the case merits. Finally, evaluative ADR also consists of expert or specialist evaluation. Expert evaluation is often used when issues involved require technical expertise and opinions. For instance, disputes in biomedicine, software design and construction may require specialists for deliberation. In some cases, the conflicting parties may agree prior that specialists’ opinions would be considered definitive and, therefore, used to make a settlement. The proceeding is considered informal to encourage open interaction between the parties and specialists without pressure from an aggressive party.
Facilitative ADR
In this approach, the neutral cannot provide a binding decision or arrive at the merit of the case. Rather, the neutral acts as an advisor to disputants with the aim of facilitating dialogue, discussion and settlement. Facilitative ADR consists of conciliation, mediation and consensus building. Mediation is less adversarial because the mediator focuses on assisting the parties to note major concerns, review the discussion and brainstorm potential choices for settlement. The ultimate goal of the proceeding is to provide a win-win settlement to ensure that the parties get a satisfactory resolution. Conciliation is almost like mediation but is less formal. In some instance, conciliation may involve the use of other means of communication such as phone calls or e-mails rather than face-to-face meetings. In addition, conciliation may also be adopted if conflicting parties have already attained some kind of reconciliation, relationships strengthened and only details are yet to be resolved for settlement. Finally, consensus building normally involves a large number of parties and their representatives who are selected to secure a decision on behalf of the rest. One major characteristic of consensus building is that it is most likely to take longer period. The large number of parties involved could hinder individuals from attending and, therefore, only representatives may attend deliberations.
Why Use Alternative Dispute Resolution
Alternative dispute resolution is associated with some benefits to parties that opt for it. First, parties have opportunities to process their disputes quickly and resolve issues faster before they can cause damages and losses. Second, deliberation processes offer highly creative solutions. Third, alternative dispute resolution has helped federal courts to clear case backlogs and, thus, save costs and time. In most instances, normal court cases take much time to conclude. Fourth, while the settlement proposed could be creative, they are not always imposed on conflicting parties. Finally, alternative dispute resolution is considered voluntary and durable. Even in cases that do not end in settlement, the process provides opportunities for subsequent settlement and issue clarification for all parties, including third parties.
Given the history of alternative dispute resolution in the US, some scholars have argued that conflicting parties, in most instances, have leaned toward informal dispute settlement, including ADR (Menkel-Meadow, 2013). In this regard, ADR is considered as a solution to serious issues facing formal legal system in the US. Thus, it is now highly regarded in the US due to its more formal approaches. In addition, it is also noted that the use of ADR and other private mechanisms of dispute resolution in arbitration, mediation and other similar approaches among conflicting parties who opt for ADR rather than the formal justice system has gained recognition, particularly in commercial issues and private family affairs. These observed trends have made the justice system more private while enhancing access to justice for different parties. In fact, it is noted that out-of-court settlement has become the major characteristic of the modern US justice system (Nosyreva, 2010). Hence, it should be promoted to improve access to justice (Esher, 2009).
Conclusion
ADR has undergone evolution as a means of providing access to justice in the US. Its major aim however has always been consistent – to offer satisfactory settlement to conflicting parties using out-of-court systems. Consequently, the current trend shows that ADR has become an important and preferred means of resolving both commercial and private matters. ADR programs should be promoted to enhance the vision of justice across the US.
References
Colvin, A. J. (2012). American Workplace Dispute Resolution in the Individual Rights Era. International Journal of Human Rights Management, 23(3), 459-475.
Esher, J. A. (2009). alternative Dispute Resolution in U.S. Bankruptcy Practice. University of Massachusetts Law Review, 4(1), 76-89.
Marcum, T. M., & Campbell, E. A. (2009). The Need for Training and Education in Peer Reviewof Employment Disputes. ALSB Journal of Employment and Labor Law, 11(1), 48 – 62.
McManus, M., & Silverstein, B. (2011). Brief History of Alternative Dispute Resolution in the United States. The CADMUS Journal, 1(3), 100-105.
Menkel-Meadow, C. (2013). Regulation of Dispute Resolution in the United States of America: From the Formal to the Informal to the Semi-formal. Oxford, UK: Hart.
Nosyreva, E. (2010). Alternative Dispute Resolution in the United Statesand Russia: A Comparative Evaluation. Annual Survey of International & Comparative Law, 7(1), 7-13.
Rasnic, C. D. (2004). Alternate Dispute Resolution Rather Then Litigation? A Look At Current Irish & American Laws. Judicial Studies Institute Journal, 4(2), 182-198.
United States Office of Personnel Management. (n.d). Alternate Dispute Resolution Handbook. Web.
The traditional jurisdiction system methods of offenders’ treatment are being substituted by novel conflicts resolution strategies nowadays. Such procedures include alternative dispute resolution (ADR) and diversion programs. The first one aims to provide a second chance to law offenders by not allocating them criminal records. The lawbreakers are still penalized, and they participate in collective works as their punishment, but they do not lose their jobs or connections with family. Next, diversion implies the dismissal of a case from the queue for court proceedings. Instead, a reconciliation of an offender and victims are performed to restore justice. Thus, new methods incorporate the philosophy of rectification through ways that do not destroy an offender’s life.
Both programs were criticized for being applied only for the least severe prosecutions. However, this argument could be viewed as irrelevant to the practices. The practices are meant to be for first-time offenders or individuals that acted emotionally, instinctively, or because of their toxic environment. As emphasized in Hartley et al. (2017, p. 304), “prosecutors must often prioritize cases and arrange them from the most to least serious.” The program is not apt for severe criminals; moreover, it should not be extended to such violations as murder, rape, or pedophile inclinations. Going through the treatment, persons can always repeat the crime; other human lives and security are not to be threatened by such experiments. Therefore, the methods help reduce the cases’ number, but they should not be amplified on people that terrorize the common safety.
Additionally, some reproach the programs for choosing cases with gender or racial prejudices. The claim of gender disparity in courts seems to be obsolete. Namely, Hartley et al. (2019) mention that the issue has been solved at the end of the previous century. As for racial discrimination, the mediators and impartial arbiters still might undervalue the influence of environmental impact on the minorities. To prevent this, the system can improve the understanding of cultural differences among the participants of the judicial procedures.
Reference
Hartley, R., Rabe, G., & Champion, D. (2017). Criminal courts: Structure, process, and issues (4th ed.). Pearson. Web.