Strengths and Weaknesses of Alternate Dispute Resolution
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Added on 2021-06-15
Strengths and Weaknesses of Alternate Dispute Resolution
Added on 2021-06-15
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Running head: RESEARCH PAPERResearch paperName of the StudentName of the UniversityAuthor Note
1RESEARCH PAPERAnswer 4Strengths and Weaknesses of Alternate Dispute Resolution drawing on examples, with specificreference to when it may be contentiousIntroductionThe definition of alternate dispute resolution encompasses several wide-rangingprocesses, techniques and practices that are used to settle disputes without resorting to courtproceedings. The alternate dispute resolution process or ADR is used to resolve disputes arisingbetween two or more parties without any court assistance1. The concept of ADR has emergedfrom the high expenses and time-consuming proceedings that are associated with litigation andpresently, it has become a trend that both the courts and legislature themselves refer to, in orderto lessen the burden of court cases. This research essay paper aims at exploring the concept ofADR and its various processes as well as techniques that are adopted to resolve the disputesbetween the parties. It provides brief overview of the all the forms of ADR taking into accountthe recent developments in ADR within court. The paper finally discusses about the advantagesand deficiencies of ADR using illustrations including circumstances when such ADR methodsmight become contentious2.1 Donaldson, Lord. "Alternative dispute resolution." ADR, Arbitration, and Mediation (2014): 91.2 Meyerson, Amy Lin. "Alternative Dispute Resolution." GPSolo32 (2015): 6.
2RESEARCH PAPERConcept of Alternative Dispute Resolution processes (ADR)ADR has been significantly considered as a non-judicial process where disputes areresolved without court interferences. It forms a crucial part of the legal system of several nationsas the courts itself have been referring parties to a dispute to settle their matter using the alternatedispute methods3. The notion of ADR entails a third person who enables disputed parties toresolve their disputes without necessitating any judicial determinations like court or tribunaldecisions. The ADR processes enable the parties to a dispute to resolve their issue through thethird person who acts impartially on behalf of both the parties leading to a unbiased decision. The ADR processes aims at establishing the rights of the party making ADR claimsregarding the dispute to submit his or her claims and subsequently, enable the other party toconsider such claims in terms of contractual terms, validity and possible consequences.However, mere lodging a claim does not imply that a dispute exists but if the parties fail to reachto any agreement or there is a difference in the interpretation of the claim between the parties,dispute shall be said to have been lodged. The parties then use the alternate dispute resolutionmethods to settle the claimed disputes in a cost-effective and timely manner4. Amongst the various alternate dispute resolution processes, the most common form ofADR processes include conciliation, adjudication, mediation, negotiation, early neutralevaluation, arbitration and expert determination. While early neutral evaluation and expertdetermination are less known alternative dispute methods but these techniques have only onefactor in common and that is he element of negotiation which plays a substantial role in all the3 Dye, Jessie Clayton. "Alternative Dispute Resolution." The Catholic Lawyer 33.1 (2017): 12.4 Chappe, Nathalie. "Alternative Dispute Resolution." Encyclopedia of Law and Economics (2014): 1-5.
3RESEARCH PAPERalternate dispute methods5. The various processes also determine the strength and deficiencies ofthe ADR processes in resolving the disputes between the parties. Types of ADR Processes and their advantages over litigationArbitrationArbitration method as an alternate dispute method is used where a dispute is referred toan impartial intermediary that is selected by the parties to the dispute6. The parties to the disputeusually agree to abide by the award provided by the arbitrator after the arbitrator hears both theparties. Arbitration process is similar to traditional civil litigation where an impartial arbitratorafter hearing the claims imposes a binding and final decision enforceable by the courts. The onlydifference between the arbitration and traditional civil litigation is that in case of arbitration, theparties to the dispute may determine that any future disputes shall be decided using ADRmethods. On the other hand, in civil litigation, the aggrieved party usually determines, thejudicial system after a dispute arises between them. Further, another advantage of ADR methodover the civil litigation is that the in arbitration process the disputing parties may elect anarbitrator that will resolve the dispute but in case of civil litigation, parties do not have controlover the presiding judge of their legal proceedings7. Arbitration may be judicial and private arbitration where private arbitration is consideredas the most common ADR process and is generally the outcome of an arbitration agreemententered between two parties who anticipate any future disputes to be solved using arbitration. Forinstance, these type of ADR agreements are used between employers and unions where5 Pryor, Will. "Alternative Dispute Resolution." SMU Annual Texas Survey 1.1 (2014): 1.6 Ware, Stephen. Principles of alternative dispute resolution. West Academic, 2016.7 Blake, Susan Heather, Julie Browne, and Stuart Sime. A practical approach to alternative dispute resolution.Oxford University Press, 2016.
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