Alternate Dispute Resolution
In the past, disputes have been solved through love will go through the process. However, in This process, the prominent participants in the dispute had no authority to control the process. Over time, alternative dispute-resolution methods have been identified (McGuinness, 2016).
Therefore, alternative dispute resolution incorporates a wide range of dispute resolution methods that act as a means by which two or more disputing parties reach an agreement. In this case, the parties involved have the power to control the process, but with the help of a third party, uniting the main parties. Also, conflict resolution occurs outside the courtroom, and no judges or magistrates are involved. Despite the recorded historical resistance to these techniques, they are increasingly accepted and used in settling disputes alongside the functioning court system. Consequently, they have received wide recognition and support from legal procedures.
McGuinness (2016) wrote that Since the 1990s, several American courts have advocated for applying ADR methods to settle disputes. The main ADR techniques applied today in America and the globe are negotiation, arbitration, and mediation (McGuinness, 2016). Among these, mediation is the most formal and simplified method. Alternative dispute resolution processes and techniques are significant to society, and more authorities should join hands and advocate for these methods.
Commonly Used Alternative Resolution Techniques.
Mediation is one of the commonly used alternative dispute resolution methods used today. It refers to a process where a third party the difference between two conflicting parties to bring them into understanding and solving their problems outside the courtroom. Generally, according to Hayes (2017), this process is applied whenever negotiations between the parties to the conflict cannot work. Therefore, the mediator should be neutral and better understand the case. This is significant because it promotes equality during dispute resolution. Moreover, the mediator should understand the conflicting parties to apply mediation skills and achieve the results of the process. There are several categories of this dispute resolution technique: evaluative mediation, facilitative mediation, therapeutic mediation, and finally, transformative mediation (Hayes,2017). In evaluative mediation, the mediator analyses and evaluates the conflicting parties’ rights and applies the law to ensure justice is done and a Deadlock is met. Facilitative mediation provides solutions to several problems attached to the dispute, and the mediator facilitates communication in search of
mutual Solutions. On the other hand, therapeutic mediation is focused on healing the pain caused by the argument. Finally, Hayes (2017) claims that transformative mediation aims at transforming disputants and making them understand the other party by acknowledging the underlined perspectives, thus creating empathy between the parties. Mediation allows a neutral individual to provide a long-lasting solution to the dispute between parties without necessarily attending a courtroom.
Secondly, arbitration is a powerful tool for solving disputes outside the courtroom. This is A technique where a private party resolves the dispute. This party is referred to as an arbitrator. Like in mediation, a third party resolves the underlying conflict (McGuinness, 2016). However, this case is different because the arbitration process involves the conflicting parties giving full power to the arbitrator to make the ruling with no objection. Sometimes, a group of arbitrators named a tribunal could also help in a private ruling of a dispute. This method has different principles attached to it. According to McGuinness (2016). the first principle is that the Court should not interfere with the process. Secondly, the arbitration process should provide a solution, and finally, the conflicting parties should agree on how their issues will be handled. Like other ADR forms, the ion has subcategories, the first being commercial arbitration. This category involved solving disputes among commercial parties. Consumer Arbitration is also involved in sorting issues between the supplier and the consumer of a particular commodity.
Moreover, employment issues are often resolved by labor arbitration. Other forms include rights and interest arbitration, which revolve around the existing Collective agreement, which has either been misinterpreted or violated. Generally, arbitration is one of the most efficient and private ways of solving disputes apart from attending court sessions.
Thirdly, Community dispute resolution programs are commonly applied in dispute resolution worldwide today. These are associations available for solving disputes that arise among members of the community. The programs apply informal processes such as mediation to solve community problems. According to Schwarzrock (2018), The ancient CDR programs seem to have been initiated by courts and prosecutors while wanting to approach minor cases like robbery and insults easily. Philadelphia and Columbus have a record of the most extended lineage in applying community programs for sorting issues. The two triggered the rise of similar programs in other parts of the world in the 1970s. Schwarzrock (2018) wrote that programs share a variety of characteristics. First, all the programs use trained volunteers to mediate and help conflicting parties attain a deadlock. Secondly, all community members receive the same services without considering their payment capabilities.
Moreover, they act as an alternative to the judicial system at any stage of the dispute. Lastly, well-directed conflict resolution programs employ fairness while recruiting trainees (Schwarzrock, 2018). Therefore, the CDR programs solve community issues, from barking dogs to other serious offenses. This process has training components to make them consistent and sustainable, and the public has opportunities to train frequently and learn conflict resolution skills.
Facilitation appears to be the fourth most primarily used conflict resolution approach today. It is a dispute resolution process that involves other parties helping conflicting parties to solve an issue without directly getting involved in the negotiations (Das, 2019). facilitators avail resources and provide opportunities that support the dispute resolution process allowing parties to the conflict to achieve a deadlock. A good facilitator supports individuals to find solutions to problems more quickly. For instance, Das (2019) claims facilitation is mainly applied in workplaces where there are differences and disputes between employers and employees or even between employees. Specifically, the main contributions of facilitators are helping groups set their policies and goals to achieve, build trust, advocate for full participation, strive towards translation, and facilitate the discussion. Notably, a facilitator should be acceptable to all discussion team members to enable them to lead the decision-making and structure of the base for dispute resolution. This dispute-resolution technique has three central core values guiding its application performance. As presented by Das (2019), the first one is valid information in which every party has a right to information necessary for the issue and should understand the information and the implication.
Secondly, every individual has a right to free and informed choice. In that, they have a right to set their own goal. Lastly, an individual is entitled to internal commitment, which boosts the sense of responsibility during dispute resolution. Conclusively, this remains a prominent tool in dispute resolution complementing judicial processes.
Like in mediation, settlement conferences entail a meeting in which a third party joins with disputing parties to find an acceptable resolution to the problem highlighted in the dispute. However, the meeting is usually held after a lawsuit is filed, but for the actual court trial. In this conference, the judge comes between the parties and lawfully helps them analyze the details’ strengths and weaknesses in the dispute but does not make any significant decisions. The technique significantly applies to settling contract disputes, domestic relations cases, employment issues, and civil lawsuits. Legally, good-faith participation in this process is essential to avoid sanctions by the Court. Some states have made it compulsory for this process to be applied before the actual trials are taken. The settlement conference is relatively short and informal compared to the actual trial session. The process has a unique procedure. As Cott (2017) highlights, First, the parties in the conflict brief the judge on the background information of the issue. Therefore, the judge uses this information to prepare to help them resolve the dispute. After, the judge meets each party separately while conducting investigations and making recommendations. Finally, the actual discussion begins, and the judge prepares a report of the outcomes and submits it to the Court.
The last technique is adjudication. Balogun, Anzari, and Thwala (2017) define this process as a legal one that entails a judge analyzing the evidence and arguments parties present. They will therefore apply legal reasoning to resolve the dispute. In this case, the conflicting parties should both accept the appointed adjudicator. If they disagree, one or both parties can file an appointment request for ODACC. The ODACC then appoints the adjudicator a week after receiving the appointment request. The appointed adjudicator determines the appropriate circumstances based on 13.12(4) of the constitution act. The process entails in-person hearings, videoconference hearings, site visits, or the use of documents only. Adjudication entails a fee to be paid by the conflicting parties. The adjudicator contacts the parties to negotiate the fee. After the documents or evidence are submitted to the adjudicator, it takes him 30 days to decide. Finally, the ODACC verifies the decision and sends it to the parties. Thus the case is solved. Generally, though the process involves payment of a resolution fee, it is very effective and time-saving since the deadlines for the process are specified.
Factors Affecting Choice Of Alternate Dispute Resolution Techniques
The selection or performance of an alternate dispute resolution technique is affected by several factors. These factors include cost, neutrality, degree of control, speed, creative remedies, outcomes, flexibility, enforceability, and relationship preservation. The costs affiliated with dispute resolutions include reaching a settlement agreement, such as revenue expenses, third-party fees, settlement costs, and documentation. Cost is the most fundamental factor when assessing the best alternate dispute resolution method. Evaluating the cost is critical as it determines the profit share after a case has been resolved. Neutrality depends on the fairness of the third party resolving the conflict. During conflict resolution, the honesty of the third is essential to reach a fair and neutral judgment. A neutral judgment ensures no further disputes arise after establishing a solution. The choice of a third party is paramount in the outcomes of the dispute. As such, the party should be guided by the acceptable code of conduct in conflict resolution (Menkel-Meadow et al., 2018). Time is of the essence in project management. Time determines the speed of conflict resolution, with conflicts that take up a lot of time utilizing many resources. The concerned parties may be penalized or incur additional costs when they fail to resolve their issues at the time.
The outcomes of any construction disputes are connected to liability costs. Parties that initiate disputes feel that the other parties owe them costs in payment variation, artistry quality, compensation costs, and final payments. These costs are owed due to delays in work, liquidated damages, or payment for the time extension. The privacy and confidentiality of the parties involved and the case details are paramount in any conflict resolution. The third party should not disclose the identities or details involved to other parties without the consent of the involved individuals. Hiding the uniqueness of the people involved is essential as it safeguards their interests. The confidentiality of the information also depends on the selection and integrity of the third party. For such reasons, the third party should be selected after careful consideration by the parties seeking a resolution. Confidentiality protects the outcomes of the dispute from external influences (Menkel-Meadow et al., 2018). The third party cannot enforce the outcomes of a case outside the Court unless it is a written agreement. Thus, when selecting a dispute resolution technique, it is crucial to consider the enforceability of the outcomes. A resolution cannot be viable if its enforceability does not result in restitution.
An effective dispute-resolution technique should ensure the continuity and preservation of relationships. The success of any organization is dependent on trust, respect, and a joint effort by all. Thus, when resolving a conflict, the organization should ensure that the selected method preserves the relationships of its employees and employers. A resolution method should empower the concerned parties to look beyond the conflict for the sake of the organization and mature social interactions. The resolution should not only solve the problem but ensure the continuity of good relations. During dispute resolution, the parties should be concerned with the conflict and resolve it, not with the individual that caused it. Restricting the relationship between the problem and the individual driving it is essential. Alternate dispute resolution methods are non-binding and should encourage cooperation after finding solutions (Menkel-Meadow et al., 2018)—the degree of control results in an amicable solution. The parties involved should have a sense of control in the proceedings of the conflict resolution process. With a sense of control, the parties will shape the direction of the solution and are likely to agree with it. The creativity of the strategy ensures the use of the best solutions that meet the needs of both parties.
Strengths and Weaknesses
Alternate dispute resolution methods are less costly as the cost is considered before selecting a strategy. Costs are crucial as it dictates how much both parties will pay and the profit distribution. These methods are also time-effective and faster, enabling solutions to be reached within the shortest time. Alternate dispute resolution techniques allow each party to tell their side of the story how they see it. Such aspects are critical as the third party gets to understand the thought processes of these individuals. Also, it allows the third party to understand the conflict more as the narration puts them in the situation. These techniques are also more responsive to the requirements and needs of the involved parties. The parties are actively involved in the conflict resolution and propose a solution to serve their needs.
These conflict resolution techniques ensure the confidentiality of the involved parties and protect them from public scrutiny. Since all the parties are involved in creating and formulating a solution, compliance is assured since all parties will be committed to the solutions they provide (Craver, 2017). Thus, the conflict will not escalate after the solutions have been formulated due to commitments and compliance.
There are several weaknesses of alternate dispute resolution techniques. Since these techniques are informal, they do not guarantee solutions. According to (Craver 2017), Except for arbitration, the conflicted parties may not reach a solution that solves the problem. Therefore, the organization may use its time, money, and other resources and fail to develop an amicable solution to the conflict. The decisions of the arbitration are final and cannot be appealed. As such, when one party does not agree with the solution, they cannot change it. These methods are only used in disputes that concern money due to injunctions. The arbitration cannot change the ownership of any real property, and thus their scope is limited. There are also discovery limitations in alternate dispute resolution methods. These techniques lack procedural safeguards that protect the involved parties as it happens in courts. These techniques require the neutral party to be paid through a charged fee. The payment differentiates these methods from the court system since the conflicting parties do not pay judges (Craver, 2017). These techniques are non-binding; therefore, one party may decide not to follow the provided guidelines and solutions. Thus, one may invest their time and resolutions but fail to get the desired solution or solve the conflict.
Conclusion
Alternative dispute resolution is currently accepted and applied in many states worldwide. This resolution approach employs techniques such as Mediation, Arbitration, community dispute programs, collaboration, settlement conferences, facilitation, and neutral evaluation to resolve the problems in the community today. However, each of the techniques is applied in different specific scenarios. The section on the type of technique to use is affected by factors such as cost, neutrality, degree of control, speed, creative remedies, outcomes, flexibility, enforceability, and relationship preservation. With these elements, the dispute resolution team often chooses the most effective and affordable problem-solving method.
Moreover, several strengths and weaknesses are attached to alternative conflict resolution in line with judicial processes. One of the strengths of this approach is that the techniques used are cost and time effective. Also, the methods used to ensure confidentiality of the client’s or the parties’ information shared during the resolution process. However, the weaknesses include the lack of procedural safeguards in some techniques and that most oo does not guarantee favorable results after the process. Generally, alternative dispute resolution stands out as the most effective and widely accepted worldwide.
References
Balogun, O. A., Anzari, N., & Thwala, W. D. (2017). Adjudication and arbitration as a technique in resolving construction industry disputes: A literature review. In Proceedings of the Sixth International Conference on Advances in Civil, Structural and Environmental Engineering. ACSEE.
Cott, J. L. (2017). The Dos and Don’ts of Settlement Conferences. Pub. Law., 25, 18.
Craver, C. B. (2017). Do Alternative Dispute Resolution Procedures Disadvantage Women and Minorities? SMUL Rev., 70, 891.
Das, D. Z. (2019). Alternate Dispute Resolution. Available at SSRN 3516476.
Hayes, A. F. (2017). Introduction to mediation, moderation, and conditional process analysis: A regression-based approach. Guilford publications.
McGuinness, H. M. J. C. (2016). Alternative Dispute Resolution-Mediation and Conciliation.
Menkel-Meadow, C. J., Porter-Love, L., Kupfer-Schneider, A., & Moffitt, M. (2018). Dispute resolution: Beyond the adversarial model. Aspen Publishers.
Schwarzrock, K. (2018). The Process of Peace: Using Community Dispute Resolution to Improve the Relationship Between Police and Community in Minnesota. Mitchell Hamline LJ Pub. Pol’y & Prac., 39, 87
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Question 
Alternate Dispute Resolution
Alternate dispute resolution (ADR) refers to procedures and techniques for settling disputes outside the courtroom. These settlements are often negotiated by legal counsel representing the company. There are several types of ADR depending on the dispute. The federal government, large businesses, and small businesses can all benefit from resolving complaints this way. If your company has sound corporate governance, it typically means there is a strong relationship with stakeholders, often including disclosure and transparency processes when sharing financial and operational aspects of the company.
Select one type of ADR. Provide an example of a business dispute that would use this type. How can using this type mitigate the concerns? Who from the business would need to be involved?
Response Requirements
- By Thursday, respond to the prompt above in at least 175 words.