Alternative dispute resolution
ULO 1: Apply key principles of law for commerce to recognize and evaluate legal issues.
ULO 2: Analyse and interpret legal issues in domestic and international contexts.
ULO 3: Use appropriate digital technologies to search retrieve and apply relevant information law for commerce.
Alternative dispute resolution
Professionals, like mediators, facilitators, and ombudsmen, responsible for resolving conflicts rarely advocate for disputants. They are well trained in helping disputants settle their disputes using a collaborative Alternate Dispute Resolution method. The training and experience have made the practitioners realise that disputes should always settle for a more satisfactory, long-term solution that can only be achieved by discussing and negotiating. The practitioners believe that when people join hands to come up with decisions, they are always more likely come to an agreement that meets a greater part of their needs; it does not necessarily mean that they fully meet their desire. If people take control of the process of shaping the resolution of a dispute, then there is a greater probability that the agreement will work. This also leaves no room for them to present the solution or sabotage the agreement. ADR requires that the disputants give their parts of the story within a non-adversarial setting. In this case, they get to understand one another’s perspective. ADR practitioners need to create an environment for them to negotiate an agreement matching their understanding. ADR practitioners, therefore, use negotiation to yield much more satisfactory solutions and sustainable relationship without declaring one side as the winner and the other as the loser. Mediators, facilitators, and ombudsmen representing the ADR practitioners help people successfully communicate and process their perspectives and needs. The disputants, therefore, find common ground through a cost effective, fast and confidential way.
Organizations that have put in place ADR programs always look forward to measurable results. These results may be evaluated using different approaches: the quality of services offered (Kirby, 2009; Udoh & Sanni, 2015), the time is taken to reach the resolutions (Kirby, 2009), the satisfaction levels among the users after the process, the willingness to consider using the ADR process in case disagreement occurs again, among other measures. However, the most common evaluative measure focuses on the financial resources used.
The judicial system may be considered as being adversarial and expensive for middle to low-income economies. Most businesses, therefore, find themselves hiring attorneys who serve to guide them in interpreting the legal system (Rühl, 2015). However, these Attorneys tend to be very expensive. Many people are not in a position to afford lawyers and end up with no intervention to assist with resolving their disputes. As a result, some institutions leave conflicts to escalate to a highly volatile state, threatening the recovery of the troubled relationships (Udoh & Sanni, 2015). Furthermore, in an adversarial system where the judge or jury determine the winner and loser, it not all parties has their interests satisfied despite their spending. In fact, in some cases, no party’s interests are met. Many disputants fail to realise that with the help of ADR practitioners trained in conflict resolution, they could better resolve conflicts among themselves. The professionals recommend that ADR is best applied when a dispute has not been escalated by a judicial system approach. The third parties are always neutral, and even though they may want to be compensated for helping with the satisfactory resolution, they tend to be a cheaper alternative to the legal system. Disputants, therefore, need to acknowledge the efforts of the ADR practitioners.
Confidentiality is the most important component for the success of the ADR process. The practitioner’s guarantee of confidentiality encourages the disputants to freely engage in discussions by expressing their interests and expectations of the best possible settlement (Udoh & Sanni, 2015). The promise of secrecy would also allow them parties to speak openly without the fear of disclosure. The practitioners use confidentiality as a way of reducing posturing and destructive conversations between the disputants during the resolution process. Unlike the hearings within the legal system that are open to the public, practitioners hold ADR processes in private with only the affected parties and their representatives attending (Duffy & Field, 2014). During an ADR process (the practitioners get to discuss matters in a closed session. The issues addressed during the meetings remains to be confidential. The practitioners are bound by an ethical obligation of not disclosing any information unless clearly asked to do so by one party or by the law.
The need to maintain the confidentiality within any ADR program primarily depends on the practitioner’s ability to be neutral for purposes within a particular dispute resolution process. If that is the case, the third party must maintain the highest levels of confidentiality given that the work for the parties they assist in resolving the dispute (McKenzie, 2015). Their role of being neutral supports the mediation among businesses and within workplaces both at the local and international level.
Impact on time
The major point of concern for ADR practitioners is whether disputes will get resolved quickly during the ADR processes when compared to the legal system. The time factor largely depends on factors like participant preparation, the timeframes set by the third party, and the days required finding a resolution (Kirby, 2009). Resolving disputes through the ADR process takes a shorter period relative to judicial systems, therefore, making it easy to evaluate its effectiveness. ADR practitioners allow for the opportunity to achieve direct feedback on the participants’ concerns. The kind of feedback does not have an equivalent in the judicial system. ADR processes give room for the practitioners to explore and evaluate the considerations that cannot be admitted within a bench trial (Udoh & Sanni, 2015). Besides, it has a broad range of solution options making the process of coming to a conclusion quite fast. The process discourages combativeness, encourage positivity, and creative dynamism between the participants. Practitioners also strive to expose the parties to substantially less stress within the short period with the minimal public setting.
With a successful intervention by ADR practitioners, the process is likely to lead to a solution that satisfies all parties. The practitioners encourage the people in dispute to engage in constructive discussions and come up with a range of options. Rather than working towards an acceptable compromise, practitioners try to settle on agreements reflecting the best possible outcome for all parties. This clearly affects the aftermath. Duffy & Field (2014) indicate that agreements disputes resolved through ADR tend to last longer. The agreements hardly require any enforcement action.
Other less tangible benefits associated with ADR practitioners include their ability to improve the quality of relationships between businesses through their problem-solving skills. Rühl (2015) argues that seeking the assistance of ADR practitioners improve both professional and business relationships. Besides, their efforts tend to support the continuation of business relationships considering their non-adversarial form of mediation. Similarly, a survey by Duffy & Field (2014) find that business relationships incorporating ADR continue to flourish making the quality and effectiveness of the service offered by practitioners an important factor for firms. Kirby (2009) also reported that another important effect of mediation is the improvement in skills in conflict resolution as well as empowering the parties to be responsible for solving their problems.
dispute resolution presents the business community and the society a reliable
alternative to the legal system. The practitioners have applied the method with
considerable success as compared to if the cases would have been brought before
the court system. Experts further advice that it should be in the best interest
of the disputants to resolve their conflicts before considering to enter the
legal system. However, even upon entering the legal system, ADR practitioners’
reputations have much to offer. ADR practitioners need to promote their
services, besides building their clientele for ADR. Given the specialty of the
practitioners, ADR can be best conducted outside the legal system before the
dispute escalates into a conflict. The practitioners serve people more
satisfactorily within a minimal resource margin. Promoting ADR could change how
the society views the dispute resolution process. Business relationships will
be successful, with the likelihood that the participants will learn to resolve
Duffy, J. & Field, R., 2014. Why ADR must be a mandatory subject in the law degree: A cheat sheet for the willing and a primer for the non-believer. Australasian Dispute Resolution Journal, 25(1), pp. 9-19.
Kirby, A. C., 2009. Alternatve dispute resolution– A hard nosed view of its strengths and limitations. Adelaide, The institute of Arbitrators & Mediators Australia.
McKenzie, D., 2015. The role of mediation in resolving workplace relationship conflict. International journal of law and psychiatry, Volume 39, pp. 52-59.
Rühl, G. 2., 2015. Alternative and Online Dispute Resolution for Cross-Border Consumer Contracts: a Critical Evaluation of the European Legislature’s Recent Efforts to Boost Competitiveness and Growth in the Internal Market. Journal of Consumer Policy, 38(4), pp. 431-456.
Udoh, N. & Sanni, K., 2015. Supplanting the venom of litigation with alternative dispute resolution: the role of counsellors and guidance professionals. British Journal of Guidance & Counselling, 43(5), pp. 518-529.