The alternative dispute resolution (ADR) which is also known as External Dispute Resolution in Australia refers to the resolution techniques and processes that take place outside the governmental judicial process. The term ‘alternative dispute resolution’ or ADR is used to describe a variety of dispute resolution mechanisms that are used as an alternative to the court processes. The concept of ADR includes facilitated settlement negotiations where the disputants are required to negotiate directly with each other before resorting to some other legal process and it includes arbitration systems that are similar to the court process. The alternative dispute resolution is used to deal with community issues or other issues related to community development. The alternate dispute resolution provides an alternative to the court processes for resolving disagreements between the parties to the dispute.
The evolution of the concept of alternate dispute resolution can be traced back to the historic period where members of any community or village resolved any disputes arising between themselves. Prior to the establishment of law or courts or before there were judges who formulate legal principles, man always resorted to arbitration for resolving any disputes that may arise amongst themselves. The concept of alternate dispute resolution has been gaining popularity in the contemporary era and it is not just restricted to the field of law but is equally acknowledged in the commercial context. The primary reasons for which the concept of alternate dispute resolutions has been gaining importance are the expensive, time-consuming and inadequacy of the court system.
Mikula (2017) states the primary objective of ADR is to resolve the disputes amongst parties in a cost-effective manner while nurturing long-term relationships. In other words, alternate dispute resolution method is a less adverse means to settle disputes without involving courts and its expensive and time-consuming procedures. The various ADR methods act as substitutes for resolving civil disputes and litigation. The significance of the alternate dispute resolution approaches lies in the fact that it tends to provide the most effective remedy, which is appropriate as per the facts of the case. This makes the process a practicable alternative to litigation or arbitration. As the name suggest, alternative dispute resolution provides alternative processes to resolve the disputes as opposed to the traditional process of dispute resolution provided by the courts. Since the methods used as alternate dispute resolution are mainly techniques and practices that resolve the disputes outside the jurisdiction of the court procedures, these approaches or methods are referred to as non-judicial procedures or means to resolve disputes.
The concept of alternate dispute resolution has been conceived in the search for quick, flexible, simple and dispute resolution system that is easily accessible. The ADR processes serve to achieve the main purpose of the concept of providing alternate dispute resolution to avert annoyance, delay and cost and strive to achieve the goal of accessible justice. As the ADR processes substitutes the traditional methods of resolving the disputes, the term’ alternative’ implies the advantage provided to the parties to the dispute of selecting between the court procedures and the procedures provided by the alternate dispute resolution processes. However, it does not imply selection of alternative court but to select measures that can be used as annexed procedures of courts. The most essential techniques or methods used as an alternate dispute resolution to resolve the disputes arising between parties include conciliation, mediation, arbitration and litigation.
According to Dye (2017), several advantages and deficiencies associated with the concept of alternate dispute resolution. The various advantages that ADR provides, makes it an appropriate alternative to the conventional court procedures. Firstly, the parties are provided with flexibility to select the procedures that they want to resort to for resolving their disputes. They are also provided with the flexibility to select the laws and legal rules to be applied for resolving their disputes. Secondly, the parties to the dispute are allowed to select the arbitrator of their choice who, they believe, are competent to resolve the matter in dispute between the parties. The arbitrator is not required to be an attorney, that is beneficial in a way, as the arbitrator, shall concentrate on the issues more than the technical procedural rules. On the other hand, in case of normal litigation, the parties are not allowed to select the judge/jury due to which it involves time-consuming procedures such as need for expert witness to explain complicate issues. Hence, the more competent an arbitrator is, the less time is consumed to resolve the disputes.
Thirdly, the use of alternate dispute resolutions reduces the expenses that are otherwise incurred in engaging expert witnesses and attorneys. The court proceedings may be expensive along with it being time consuming, whereas alternate dispute resolution usually offers the advantages of providing faster and cost-effective resolutions of the disputes. Fourthly, the ADR processes ensure that the confidentiality of the outcomes of the disputes is strictly maintained. Moser (2016) states that the parties to the dispute may agree on the fact that the information and conversations exchanged and discussed during the arbitration and hearings are not to be used if the litigation persists later. The result of the dispute may also be kept confidential if the parties to the dispute agree to keep such outcome as confidential. On the other hand, most of the court trials and related proceedings does not maintain confidentiality about any disputes and are likely to be more open to the public and media as compared to the ADR processes.
Fifthly, the ADR processes allow more participation by the parties to the dispute and permits them to discuss about their individuals side of the story in their own words. This enables them to exercise more control over the outcome of the dispute as compared to normal trials in court, which restricts the same. Sixthly, ADR allows the parties to cooperate with each other owing to the selection of a neutral person as the arbitrator of their dispute, which assures that the dispute shall be, resolved impartially providing a mutually acceptable remedy. Lastly, the court processes involves high amount of stress amongst the parties to the dispute, which is comparatively much less in case of alternate dispute resolution processes.
The ADR process has certain deficiencies that often act as hindrances while resorting to ADR process to resolve the disputes. Firstly, the use of ADR processes depends upon the choice of the individuals involved in the dispute. For instance, one of the parties may not accept the concept of ADR and have higher expectation upon the court procedures to resolve the disputes. Secondly, Ware (2016) states that though ADR is cheaper and thicker, it is also a time consuming process as negotiation process may be an expensive and time-consuming process. Moreover, the level of certainty is lesser in ADR process as compared to the court proceedings. Thirdly, although the ADR processes are less expensive as compared to the court proceedings, the hiring of trained and professional arbitrators can be expensive as well. Lastly, if there is a time limit provided to any legal claim, ADR processes might not be the appropriate medium to resolve the claim. This is because ADR processes do not cease any legal time limit, which implies that if any claim is made after the time limit, the matter shall remain to be unresolved.
Amongst the various methods of ADR processes, negotiation is the most common means of settling disagreements. It refers to the communication between the parties in dispute for resolving the concerned issue. Negotiation permits the parties to take active part in the decisions directly and a successful negotiation takes the needs of both the parties into consideration. The most advantageous part of a negotiation process is that it creates a contract, which is legally enforceable. The most essential characteristics of the negotiation process is that it is voluntary in nature and the process is cost-effective. This process can be used at any stage of conflict either prior to the filing of the lawsuit or while a lawsuit is in progress or at the time of conclusion of a trial even before or after filing of an appeal.
According to Moore (2014), negotiation differs from the other ADR methods such as mediation and conciliation in that there is no independent third party who would negotiate on behalf of the parties to dispute. The party may have someone who would negotiate on behalf of the dispute party and they will represent the interest of such disputes. The parties negotiating on behalf of the parties in dispute shall be able to undertake most appropriate measures that would be beneficial for the disputing party. It is usually used to settle business related disputes and personal disputes arising from marriage, divorce, etc. The disadvantage with negotiation process is that the dispute of the parties may not be resolved through such process due to which the parties will have to resort to other methods of ADR. Further, in the event the negotiation process results in an agreement, it leads to the end of the dispute and the party is unable to re-open the case later.
Mediation is another commonly used ADR technique that includes assisted negotiations where the parties to dispute agrees to appoint an intermediary who shall be impartial while facilitating a mutually and voluntary settlement. The primary function of a mediator is to identify issues, discuss the outcomes of reaching deadline and to encourage the parties to the dispute to adjust with each other’s interests (Certo, 2015). While resorting to mediation, there is no need to involve lawyers however, the agreement between the parties to the dispute is legally binding in several be judicial systems. Mediation process ensures the information shared and discussed is kept confidential. It aims at preserving the commercial relations between the disputed parties what would otherwise be affected due to the long litigation period and court procedures.
However, the disadvantage of this ADR process is that parties often do not approach mediation process to settle the disagreement but with an intention to obtain information about the case of the opponent. The parties usually obtain information about the merits of the case, as there is an absence of court appearances, hence, there would not be any legal or factual principle to determine the matter in dispute.
Conciliation is another ADR process that is used to settle and adjust the disputes arising between parties in a friendly manner using additional judicial means. It refers to bringing two contradictory sides together to an agreement, thus, averting to take a case to trials. This process is similar to mediation but it plays a more active part suggesting possible solutions to the dispute. The conciliator is a neutral party like the mediator that provides assistance to resolve disputes between the parties (Nolan-Haley, 2013).
Arbitration process takes place when the disputed parties bring the matter before an arbitrator for resolution. It is commonly known as an out of court settlement procedure. The arbitrator exercises control over the process, giving opportunity to both the parties to express their grievances. Moser (2016) state that it is similar to court trials where only of the parties prevail but differs from the court procedures in that the right to prefer an appeal is restricted under arbitration process. The decision of the arbitrator is binding on the parties if the parties initially agree to be bound by such decision. The deficiency in this process is that it is equally expensive as the court proceedings. Further, the deliberations of the arbitrators are less intellectual than the competency of a judge and there is an absence of formulation of legal precedents.
Litigation refers to resolution of legal disputes through the civil justice system and the courts and this process is used to mandate the opposing party to participate in the dispute resolution process. It is usually commenced by filing a lawsuit in a court and attorneys who shall advance the case proceedings shall represent the parties. The disadvantage with this process of dispute resolution is that it is not only time consuming but also a very expensive process. It inculcates high stress amongst the parties due to the intricate and long court procedures (Carneiro et al., 2013).
From the above discussion, it can be inferred that the process of ADR provides quicker and cost-effective resolutions to the parties to dispute. Despite the fact that there are certain disadvantages associated with the various methods of alternate dispute resolution, these approaches reduces the burdens of court by dealing with cases for which ADR is the most appropriate dispute resolution method to resolve the concerned disputes between the parties.
Reference List
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Carneiro, D., Novais, P., Andrade, F., Zeleznikow, J., & Neves, J. (2013). Using case-based reasoning and principled negotiation to provide decision support for dispute resolution. Knowledge and Information Systems, 36(3), 789-826.
Certo, S. (2015). Supervision: Concepts and skill-building. McGraw-Hill Higher Education.
Dye, J. C. (2017). Alternative Dispute Resolution. The Catholic Lawyer, 33(1), 12.
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Moore, C. W. (2014). The mediation process: Practical strategies for resolving conflict. John Wiley & Sons.
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Nolan-Haley, J. (2013). Alternative Dispute Resolution in a Nutshell, 4th. West Academic.
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