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Alternative Dispute Resolution – The Best Avenue For Settling Disputes

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On any other given day, reading the sentence “faster, easier and cheaper” might mean someone is advertising a new vacuum cleaner. In the case of this essay, the same words could be used to describe ADR — Alternative Dispute Resolution. ADR is a general term used when parties decide to compromise their dispute without attending court. There are a few forms of ADR, such as Arbitration, Mediation, Conciliation, Early Neutral Evaluation and Negotiation. Those ADR is usually a preferred way of settling a dispute other than going on trial due several profound reasons. Using the courts can be expensive and slow, this will not only cost parties a huge sum of money due to filing fee for certain court documents and hiring lawyers, it may also prolong the dispute between both parties for months and maybe even years just to complete proceedings or paperwork that are necessary for a trial to even begin. Furthermore, most disputes that are settled in court are highly technical in nature where there are strict rules to follow in order to have a smooth trial in court. Hence, it may cause an intimidating and adversarial environment for those who attend court, this might affect one’s capability to think, recall and answer what is being questioned in court, for example, a kid would be intimidated in court when asked to be witness for a crime, in fact, almost anyone who’s not used to the intimidating and tensed atmosphere in court will probably be affected. This will also usually lead to a loss of good relations between both parties, mostly due to the adversarial nature of court. As we know, Court and trials usually have a bad connotation. On the other hand, ADR is usually shine upon lawyers and judges due to a couple reasons stated, but to what degree should ADR be seen as the best avenue for settling disputes?

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Firstly, the fastest growing form of ADR — Arbitration. Arbitration is a procedure when there is a dispute between parties, they voluntarily agree to submit their claims to an independent third party or a neutral person called an “arbitrator”, the arbitrator will then hear their argument and evidence from both parties and decides the outcome of the dispute. Arbitration can be binding and non-binding, a binding arbitration is where both parties agree and accepts the arbitrator’s decision of the disputes as final. A non-binding is when the parties do not agree to accept the arbitrator’s decision they are free to request a trial. Arbitration is the best or better avenue for settling disputes when both parties wants another person called an arbitrator to settle their disputes but also wants privacy, avoid heavy expenses, and waiting for a long period of time. Arbitrations is also best for highly subjective or complex matter where both parties need an arbitrator as a decision maker that has experience in that matter, like a professional accountant dealing with a dispute regarding to accounting. There is flexibility in date, time and venue. However, the downside of arbitration is when both or either parties doesn’t want to cooperate or wants to retain manipulate the end result of the dispute, specifically in a binding arbitration because generally parties cannot appeal the arbitration’s final decision. Even in non-binding arbitration, parties who are not satisfied with the outcome of the dispute may request for a trial and the result may still not fall in their favours, and now there may be penalties.

In Mediation, it is defined as a process by which there is third neutral third party which is also called a “mediator”, they will try to get both parties which brought up the dispute to reach a compromised solution. Mediation may be particularly appropriate when parties want to preserve or maintain a relationship within each other. When family relatives, business partners have a dispute, choosing mediation as an ADR may be the better avenue for settling a dispute. Not just that, mediation is also most useful when parties can’t get into an agreement, the mediator can hear each sides of the party and help them communicate in a non-adversarial and non-destructive manner. However, in mediation, the parties are in control. So the drawback of mediation is that it won’t be effective if one of the party is unwilling to cooperate or compromise, and it also wont be effective if one party has more advantage than the other especially in terms of monetary funds. Mediation might also not be a good choice if either parties have a stained history of abuse or victimisation.

Another form of ADR is Conciliation. In conciliation, the neutral third party also known as the conciliator takes on a more active role in the discussions between parties in order to push them in the direction of a settlement. This specific form of ADR is similar to the previous form, Mediation. In mediation, we know that the mediator plays a more passive role in terms of settling dispute. However, in Conciliation, the conciliator takes an interventionist role, he or she may have professional expertise in the subject matter in dispute and will generally provide advice to help parties settle their dispute, but the conciliator will not take sides make a judgement or decision about the dispute. Conciliation is most appropriate if parties want to reach an agreement on some technical legal issues, or want advise on the facts in their disputes. Usually, conciliation will recommended if parties have tried mediation and still cannot reach an agreement in their dispute. Downside to conciliation is similar to mediation, It wont be effective if either one party refuses to cooperate or compromise or one has more advantage than the other.

Next, another form of ADR, early neutral evaluation. In neutral evaluation, both parties get an opportunity to bring their dispute and present it to the neutral person called an evaluator. This evaluator then compare both side of the parties argument and evidence, pointing out the strength and weaknesses and decide how the dispute could be resolve. In most cases, the evaluator can be an expert in a certain field, and usually is an expert in a subject matter during a dispute. Even though the evaluators decision is not binding, the parties uses their decision and negotiate a compromised solution for their dispute. To analyse this ADR, early neutral evaluation may be most suitable for cases where it involves some technical issue and requires a person with a level of expertise in that particular case. However, early neutral evaluation may not be appropriate if there are any significant personal or emotional barriers that will effect resolving the dispute.

Lastly, negotiation. This ADR is defined as an informal method of bargaining by the parties to settle a dispute, it involves parties communicating with each other, occasionally solicitors. There are a couple advantages of negotiating even compared to the other forms of ADR, not only this form of ADR is quick and private, but it is very affordable. The drawback to negotiation is that there will be no guarantee it will be successful, parties still can appeal their case to the court as negotiation is non-binding. So, parties involve solicitors to prevent bias-ness, but this will then increase the cost of negotiation, which is then counter productive because if a solicitor is involved, this ADR is then similar to Mediation, Conciliation and Early Neutral Evaluation.

After understanding the types of ADR, we can conclude that they are quicker, cheaper and more private in general, but there are also some that are still expensive and some ineffective. So, when the question “is ADR seen as the best avenue for settling dispute?” is on the table, based on this essay we can easily say that it depends. This is due to the fact that certain ADR is only effective in certain situations and circumstances in order for it to run smoothly and successful.

10 December 2020

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