A guide to Alternative Dispute Resolution in law (ADR)


In-law Alternative Dispute Resolution (ADR) methods are now termed to be the best way to solve disputes in society. Apart from solving a dispute by courts and other judicial bodies, one may resort to solve his dispute via Alternative Dispute Resolution (ADR)

The focus here is to guide you on every important thing you must know about  (ADR)

Alternative Dispute Resolution definition

ADR is often used to describe a wide variety of dispute resolution mechanisms that are short of, or alternative to, full-scale court processes. The term can refer to everything from facilitated settlement negotiations in which disputants are encouraged to negotiate directly with each other prior to some other legal process, to arbitration systems or mini-trials that look and feel very much like a courtroom process.

Processes designed to manage community tension or facilitate community development issues can also be included within the rubric of ADR.

Methods of Alternative Dispute Resolution

The methods which are employed  in Alternative Dispute Resolution includes

  1. Arbitration
  2. Negotiation
  3. Mediation
  4. Conciliation
  5. Early Neutral Case Evaluation

Arbitration

According to Black’s Law Dictionary, arbitration is the method of dispute resolution involving an impartial third party who in most case a lawyer and who meets with the disputants, hear the case, make the determination of the case, or disputes and give the decision in terms of an award which is usually are binding.

in Arbitration there is a rule that there cannot be arbitration if the parties have not agreed to refer the matter to arbitration. Not every matter can be referred to arbitration but matters that constitute civil disputes and criminal matters which do not attract capital punishment.

Negotiation

Negotiation is a voluntary and informal process by which the parties to a dispute reach a mutually acceptable agreement. As the name implies the parties seek out the best options for each other which culminate in an agreement.

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Negotiation is a non-binding procedure in which the discussions between the parties are initiated without the intervention of any third party with the object of arriving at a negotiated settlement of a dispute. In negotiation parties voluntarily participate to settle disputes.

In negotiation, parties should determine what they want, their own reasons for what they want their interest as distinguished from their opponents.

Read also: 10 Factors to Consider Before Embark on Negotiation as a Means to Settle Your Dispute

Mediation

Mediation is among the methods of ADR which involves contesting parties and an impartial third party called a mediator. In mediation, the mediator is not an adjudicator of a dispute but merely a facilitator. His main activity is to facilitate parties to reach a mutual solution. Parties to a dispute should seek mediation when they are ready to discuss a dispute openly and honestly.

There is no judgment in mediation, rather, what has been agreed by the parties is induced in a document and signed by parties and once registered becomes binding.

Conciliation

Conciliation is an ADR method used to discover whether there is room for the parties to a dispute to make up. In conciliation A third party, the conciliator is appointed to discuss the dispute with the parties and then prepares a solution based on what he or she as the conciliator considers being a just compromise.

The solution presented to the parties is reviewed with all relevant documents after which the conciliator meets with the parties separately for the oral presentation of their cases.

The conciliator tries to satisfy both parties. In doing this he or she looks for a consensus and while not dictating a solution to the parties, nevertheless crafts one for them.

In effect, the conciliator may be regarded as the designer of the solution. This may be contrasted with mediation where the parties are guided to design their own solution.

Early Neutral Case Evaluation

Ealy Neutral Case Evaluation is an informal process whereby a neutral third party is selected by the disputants to investigate the issue in dispute and submit a report or come to give evidence at another forum like a court or arbitration.

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In this mechanism, there is a third party called the evaluator and does not make a decision or an award but evaluates the case on behalf of the parties and makes his personal assessment as to the possibility of who is going to win the case.

The outcome of a neutral fact-finding is not binding but the result is admissible for use in a trial or another forum.

The method is particularly useful in resolving complex scientific, technical, sociological, business or economic issues.

Using a neutral fact-finder eliminates the strategic posturing which characterizes the litigation or even the arbitration process.

Advantages of the ADR system

  1. Maintains the Relationship of the parties
  2. No Legal Technicalities
  3. Less Costly and Time-consuming
  4. Direct involvement of the parties at dispute
  5. Privacy

Maintains the Relationship of the parties

ADR is a user-friendly and parties-oriented system and more favorable in situations where the relationship between the parties is important.

ADR system allows them to work through their difficulties in a productive way that does not destroy their relationship.

The decision in ADR may result in the winner wins a little and loser lose a little while in the court decision winner wins all and loser lose all thing which destroys a  relationship and create enmity among parties.

No Legal Technicalities

The absence of technicalities is another factor for the use of ADR.

Usually, ADR proceedings are presided over by persons who are experts over the respective subject.

Hence it facilitates having speedy litigation. While in the normal court processes a judge or magistrates may need to research and make readings over an aspect that they do not have the knowledge and thus resulting in a delay of cases.

Also one may lose a case in court due to the legal technicalities imposed by law.

Less Costly and Time-saving

ADR is less cost full compared to the court system.

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Some of the ADR methods do not require any kind of fees. People are free to choose venues and modes of settling their dispute which is more convenient to the nature of the dispute and their financial condition.

In some instances, parties may agree to share some costs.

Court cases are expensive and may take a long time to come to an end. with mediation or negotiation, parties may settle their disputes within hours.

There are no strict rules of procedure which may result in wastage of time.

Direct involvement of the parties at dispute

In the ADR system parties are free and they feel that they are the facilitator of the decision was given in the negotiation, arbitration, and mediation as they participate in the discussions formally and informally in decision making.

This is unlike the court litigation procedures whereby the parties meet the strangers and they have no room for the selection of the judge or magistrate.

With this advantage on the part of ADR, it has been taken as an appropriate way compared to the Adversarial system. This only serves as a way to reduce the burden of the court and not a kind of replacement as stated by the statement of the question.

Privacy

In the adversarial system, proceedings are held in open court where the atmosphere can be stiff and charged hence lead to a lack of privacy, the language used is sometimes unintelligible to the common man.

Little wonder that many litigants become ill at ease.

Therefore the ADR system intended to remove such wonder from the litigants and not to replace the aim of the court litigation.

Final Remarks

Alternative Dispute Resolution system is not intended to replace altogether the Court (adversarial system) of resolving disputes.

It offers only appropriate options for litigation.

Nevertheless, there are kinds of disputes that the ADR system can’t handle such cases are constitutional law and criminal law, in respect of which there is no substitute for court decisions.

Isack Kimaro

Editor-in-chief and founder of sherianajamii.com. Holder of Bachelor of Laws (LL.B) from Mzumbe University and Post Graduate Diploma in Legal Practice from the Law school of Tanzania. Lawyer by profession and blogger by passion.

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