ALTERNATIVE DISPUTE RESOLUTION: ITS METHODS AND ADVANTAGES
Conflict is bound to arise in any society, and it is the duty of the law to find peaceful ways to resolve those conflicts. The major forum that states have provided for addressing and resolving these disputes is the court system. The formal court process that follows recourse to the courts by parties is generally referred to as litigation.
Some parties to a dispute might seek faster, less rigorous ways to resolve their disputes, and litigation, does not always offer that option. Therefore, faster, less expensive ways of resolving disputes have been developed as alternatives to litigation. They are collectively called Alternative Dispute Resolution (ADR) methods and when properly conducted, the parties come out with their relationship intact irrespective of their dispute or differences.
Alternative Dispute Resolution (ADR) refers to resolving disputes in ways other than going to court. Generally but not necessarily involving the intercession and assistance of a neutral third party who helps the parties to reach a settlement
ADR exists in various forms and the precise procedure can be tailored depending on the agreement of the parties and the circumstances of the particular dispute. The common aim behind any ADR process is to provide a flexible procedure through which the parties can reach a resolution of their dispute at less cost, in terms of both time and money and bearing in mind that the outcome will not necessarily be similar to what the parties would have achieved after a trial.
METHODS OF ALTERNATIVE DISPUTE RESOLUTION
1.ARBITRATION: Arbitration is a method of dispute settlement using a private neutral third party known as “The Arbitrator” or panel of neutrals referred to as the "Arbitral Tribunals".
Arbitral tribunals usually consist of either one or three arbitrators. The primary role of an arbitral tribunal is to apply the law and make a dispute decision by administering an "arbitral award". A valid arbitration award is final, legally binding on both sides and enforceable in the court. They can only be challenged before a court under exceptional circumstances.
Arbitration can make for speedy, but not necessarily hasty settlements. The major difference between arbitration and other methods of alternative dispute resolution is that, although it dispenses with most of the legal formalities characteristics of the courts, the arbitral proceeding is still conducted in a somewhat formal manner, and the decision of the arbitral tribunal is binding on the parties, just like the decisions of the court.
2.MEDIATION: mediation is an informal process of dispute resolution in which a neutral third party is provided with knowledge of the facts surrounding the dispute as presented by the parties, both jointly and individually, and then apply them in guiding the parties towards reaching a workable and mutually beneficial agreement. The third party is a bit more involved in ensuring that the parties reach an agreeable settlement. The third party in the mediation process does not hand down a binding decision but works with the parties to reach an agreeable settlement. Therefore, it is important for the parties to work with the mediator to reach an agreement, rather than have the mediator dominate the process or come up with suggestions.
3.CONCILIATION: the parties to a dispute present their case before an impartial third party who plays an interventionist role and then makes a number of suggestions after listening to the parties. This means that the third party allows the parties to relay their experience and communicate their positions to each other, after which he/she goes on to make suggestions to them for the peaceful resolution of the dispute.
4.MINI-TRIAL: the term ‘mini-trial’ is a bit misleading because it connotes a formal and involuntary binding process, almost like in adjudication. However, a mini-trial, like other methods of ADR, is voluntary. The decision of a mini-trial is not binding on the parties but is usually reached by the parties after each presents his/her ‘case’ or position and they can agree on an acceptable resolution. A mini-trial, as a method of dispute resolution, is usually employed in situations in which the parties are large business organisations and the conflict is such that has arisen in the course of transacting business.
An important point to note about a mini-trial is that the executives serving as representatives of the parties in the proceedings must have the authority to take a decision that is binding on the parties they represent respectively. Therefore, the intent is for the parties to reach a binding agreement at the end of the ‘proceedings’. Similar to mediation, it is the parties in a mini-trial that make a decision.
5.EARLY NEUTRAL EVALUATION: By this method of resolution, the parties appoint a neutral third party, who is usually an expert in legal matters or a legal expert in the field to which the matter relates, to analyse the details of the conflict disclosed by the parties in order to advise on the foreseeable outcome of the dispute in litigation. In other words, what this expert does is make an informal and non-binding assessment of the case from the sides of both parties, consequent upon which he/she makes a prediction of what would be the outcome of the case if it were to be adjudicated upon in a traditional court.
The early neutral evaluation may therefore be used to provide parties to a dispute with a snap-shot of possible results of an adjudicatory process so that the parties can negotiate a settlement from an informed standpoint, where each party is aware of his/her stake in the eventual adjudication of the matter. In other words, if the parties know what they stand to lose or gain from litigation, they will be able to rely on professional guidance in reaching a settlement or make the decision to go ahead with litigation.
6.LEGAL NEGOTIATION: this form of ADR is voluntary and does not involve the imposition of a decision on the parties. It is different from other forms of ADR because it does not require third party intervention. The parties work towards reaching an acceptable agreement by interactions between their legal representatives who have the authority to reach an agreement on their behalf.
1.It is cheap
2.It is fast
3.It offers confidentiality while litigation is usually a public process
4.It is less adversarial
5.It provides flexible outcomes in the form of diverse awards
Alternative dispute resolution should be explored before litigation is commenced or proceeds too far. To enjoy ADR, It is advisable to know the basic rules that govern its processes and understand its techniques.