Alternative Dispute Resolution in Law
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Added on 2021-04-21
Alternative Dispute Resolution in Law
Added on 2021-04-21
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Running head: ALTERNATIVE DISPUTE RESOLUTION IN LAWAlternative Dispute Resolution in LawName of the StudentName of the UniversityAuthor Note
1ALTERNATIVE DISPUTE RESOLUTION IN LAWAlternate Dispute Resolution is always the best option for resolution of conflictThe Commonwealth Constitution that was enforced in Australia in 1901 entailedconciliation and arbitration as both preventive and settlement methods of industrial disputes. Theterm ‘alternative dispute resolution’ refers to different forms of dispute resolution mechanismsthat are used as an alternative to the court proceedings. The thesis statement of this assignment isto establish the significance and effectiveness of the ADR process in resolving conflicts ordisputes in comparison of the court processes1. This essay shall discuss about various AlternateDispute Resolution [ADR] mechanisms that are used to resolve conflicts in the criminal familyor workplace context. It shall also entail reasons for considering ADR as the most appropriatemeans of resolving such conflicts. It is essential for a conflict resolution practitioner whether he or she is a lawyer,conciliator, mediator, arbitrator or other conflict resolution practitioner to comprehend theconflict dynamic as only then they would be able to assist people to resolve or mange theirconflict constructively2. The term conflict may be defined as a form of interacting where aperson finds himself or herself under some kind of threat that is perceived to affect the collectiveor personal goals of such person. In Australia, people usually seek assistance from third partyinstead of courts to resolve their conflicts. The term alternate dispute resolution refer to every facility to settle negotiation where thedisputants are encouraged to engage in direct negotiation with each other before resorting to any1 Goldberg, Stephen B., et al. Dispute resolution: Negotiation, mediation and other processes. Wolters Kluwer Law& Business, 2014.2 Ahmed, Masood. "Bridging the gap between alternative dispute resolution and robust adverse costs orders."Contemporary Readings in Law and Social Justice 8.1 (2016): 98.
2ALTERNATIVE DISPUTE RESOLUTION IN LAWother legal process3. It also includes other mini-trials or arbitration system that is similar to acourtroom process. The various arbitration dispute mechanisms include negotiation, prevention,mediation, conciliation, ombudsman, arbitration, neutral evaluation, courts and tribunals(litigation). These various forms of ADR processes have been designed to deal with communitydevelopment issues, manage community tensions. It is important to differentiate between non-binding and binding forms of ADR. Negotiation, conciliation and mediation resolutionmechanisms are considered non-binding programs and is dependent on the readiness of thedisputants to reach a deliberate agreement. Binding ADR processes include a third party decisionthat is binding upon the disputants even if they do not agree with such decision, similar to ajudicial decision whereas a non-binding arbitration includes a decision that may not be bindingupon the disputants4. There is a distinction between voluntary and mandatory processes in thecontext of dispute resolution mechanisms. On one hand, some judicial systems require litigantsto mediate, conciliate, negotiate or arbitrate before resorting to court proceedings. On the otherhand, in voluntary processes, resolving disputes through ADR processes depends on the will andconsent of the disputants. The use of non-traditional dispute resolution processes have been widely accepted inseveral dispute contexts. Similar processes have been applied in the context of criminal justiceforming a part of overall criminal justice reforms5. Across international and Australianjurisdictions, a variety of alternate methods has been developed to deal with the criminal3Ahmed, Masood. "Bridging the gap between alternative dispute resolution and robust adverse costs orders."Contemporary Readings in Law and Social Justice 8.1 (2016): 98.4Kimbrough, Erik O., et al. "Commitment problems in conflict resolution." Journal of Economic Behavior &Organization 112 (2015): 33-45.5 Behrens, Martin, et al. "Systems for Conflict Resolution in Comparative Perspective." (2017).
3ALTERNATIVE DISPUTE RESOLUTION IN LAWoffenders. Some of the alternate methods include family group conferencing, victim-offendermediation and circle sentencing. These programs have been applied in the Australianjurisdictions and conferencing particularly has become a commonly used method to deal withcriminal offenders in Australian the jurisdictions. The application of the ADR processes in the criminal context has emerged into thewestern countries as a completely new phenomenon. The growing interest in the application ofADR process to the criminal justice system emerged from the discontentment with theconservative adversarial dispute resolution methods6. Traditional theories of criminal justiceperceive criminal offending as a significant matter between the state and the offender. In thecontext of criminal justice system, the ADR processes may take place at different stages ofcriminal process. it can be in the form of a diversion from the court proceedings or they can beapplied as a procedure equivalent to court procedures. The application of ADR mechanisms is often considered as a better means to resolveconflict because it seeks to avoid ‘blaming’ and emphasizes on compromise and conflict. TheADR processes like victim-offender and conferencing seeks to obtain the best outcome for allthe parties in the form of procedural flexibility, interest accommodation, relationshippreservation, contextualization and active participation. The application of conferencing asADR mechanism to deal with the criminal offender is equally beneficial as the application ofinformal methods of justice. The ADR specifically aim at attaching the ‘stigma’ to the criminalact instead of the offender accused of the criminal act with the objective to achieve theacceptance of accountability. 6Spencer, David, and Samantha Hardy. Dispute Resolution in Australia: cases, commentary and materials. ThomsonReuters, 2014.
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