Alternative Dispute Resolution
Man has always sort ways of dealing with conflicts and disputes among members of the society in a just and fair manner. Alternative dispute resolution is one among the conflict resolution methods which have gained much acceptance from the public in the recent years.
The process involves any form of dispute resolution technique that does not follow the legal judicial process provisions of the law (Maclaury, 2005).
It is however worth noting that due to the increasing acceptance of alternative dispute resolution by legal professions, some legal courts allow for its use before a case is tried.
Such are viable measures in ensuring equitable justice in resolving disputes between parties. They also provide an efficient and highly cost effective way of resolving disputes. To be realized here is the fact that, of all the existing types of alternative dispute resolution methods, none is applicable to victims of capital crimes (Mareschal, 2002). The author of this paper gives a discussion on alternative dispute resolution, its history and the different forms or methods it takes.
The author also takes a look on the alternative dispute options as accepted in the modern society and how they have influenced the process of executing equitable justice between disputing parties. History of Alternative Dispute Resolution (ADR) The history of alternative dispute resolution is as old as the history of man (Mackie, 2001). Disagreements have always existed among people in the society. However, the modern history of ADR in the American society is evidently marked with the 1960s political and civil conflicts (Banks, 2008).
Such conflicts led to the implementation of human rights laws thus giving the people legal provisions for compensation on ill treatment. This was found to increase the number of legal suits in our courts of justice, a factor which led to the popular appreciation of meditation and arbitration as viable ways of resolving dispute. This did not only ensure justice but much reduced the case load in the court system. Alternative dispute resolution techniques There are mainly four type of ADR. First is negotiation.
This technique of conflict resolution involves only the type disputing parties voluntarily seeking a solution to their dispute (New York State Unified Court System, 2009). Mediation is another form of dispute resolution technique which mainly involves a third party who chairs the resolution process. It is however to be noted here that the mediator might suggest a solution to the dispute but does not have the legal/moral authority to impose it to the parties. This method is commonly used in resolving civil and ethnic conflicts within a nation or conflicts between nations.
The third method of alternative dispute resolution is the collaborative law. This technique is characterized by the fact that it involves attorneys representing the disputing parties (Mareschal, 2002). The legal professionals are tied by the contractual terms signed with their clients and thus are always acting in the interests of their respective party. Arbitration is another commonly used technique of ADR. This form of resolution process is differentiated from negotiation in that it involves a third party.
Another difference of arbitration from other forms of ADR is that the third party imposes a resolution to the problem. It is due to this reason that such a technique is usually used if the disputing parties had allowed for such in their contract (Maclaury, 2005). Due to the unfairness that could arise from such imposed resolutions, it is a common provision for parties to appeal in the courts of justice. It should however be noted that there are other forms of ADR such as case evaluation, which involves evaluation of the positions of the parties by a third party.
The evaluator then gives an assessment of the possible decision that could be made in the law courts. Such evaluations by a legal expert are made to influence the parties in resolving to settle the case outside the law courts. It is still to be noted that family conferences are another ADR technique as it strengthens the mutual relationships between family members thus reducing incidences of ill-treatment among them (Banks, 2008). Courts or individual parties can select a neutral party who contacts a fact searching investigation on the dispute.
This technique is mainly applied in resolving intellectual property disputes. Lastly, ADR can take a form in which an organization selects a third party who oversees the resolution of its disputes with complaints. Changes and options provided in ADR Traditional ADR techniques involved the constant physical involvement of the parties in resolution process. It has however been evident that most modern ADR techniques like meditation and arbitration allow for the founding of a resolution by the third party in the absence of the disputing parties (Banks, 2008). Another change in ADR is seen in arbitration.
Traditional arbitrations involved a member of the governing authority as the third party who imposes the resolution to the dispute (Center for Democracy and Governance, 1998). However, this has changed in that modern arbitration process has a neutral commercial vendor as the third party. This party should not have strong social or political influence in the process. This avoids imposition of unfair resolutions to the disputing parties. Another change of ADR techniques in the modern society is the legal provisions for appeal by the parties in the event of failure to resolve the dispute outside courtrooms.
It is however to be noted that, following the legal provisions for ADR, rules and regulations have been developed thus making the process more reliable. It is due to this reason that such dispute resolution techniques are gaining much acceptance in the public domain. Courts have evidently employed such techniques as neutral fact finding in seeking to identify the underlying facts behind the dispute. Such testimonies have a great impact in ensuring fair and just judgments in our courts. ADR has a number of options. The first is the fact that the two parties involve in the resolution process on voluntary basis (Maclaury, 2005).
Even arbitration requires for a legal binding provision on the contract signing to be executed. Another option is that the parties are free to agree or disagree on the disputed matter and can seek judicial justices as an appeal. It is however to be noted that ADR resolution once agreed upon by the two parties are legally binding and violation by any party is subject to the law. Conclusion ADR has been one way of settling disputes between parties in a contract agreement. This is also applied in disputes involving neglect of a legal responsibility by one party over another.
It is however to be realized that such dispute resolution techniques have gained much acceptance in the community due to the increasing respect for human rights space in the modern society. This has also been attributed to the fact that ADR has been legally recognized by our judicial systems. References Banks, S. (2008). ADR and Litigation Involving Social Problems. Fordham Urban Law Journal, 35, 71-97. Center for Democracy and Governance. (1998). Alternative Dispute Resolution Practitioners’ Guide. Retrieved December 11, 2009, from http://www. usaid.
gov/our_work/democracy_and_governance/publications/pdfs/pnacb895. pdf Mackie, K. (2001). A Handbook of Dispute Resolution; ADR in Action. New York: Routledge. Maclaury, J. (2005). Alternative Dispute Resolution. Monthly Labor Review, 128, 46-137. Mareschal, P. (2002). Introduction: New Frontiers in Alternative Dispute Resolution. International Journal of Public Administration, 25, 67-101. New York State Unified Court System (2009). Alternative Dispute Resolution. Retrieved December 11, 2009, from http://www. courts. state. ny. us/ip/adr/What_Is_ADR. shtml