Alternative Dispute Resolution essay
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A dispute is a disagreement of any kind that arises between two or more parties on a subject of interest. It arises due to the divergence in opinion held by the disagreeing parties. Resolution, on the other hand, can be defined as the processes and procedures employed in ironing out the issues in any disagreement. Alternative Conflict resolution, popularly known as external dispute resolution in Australia, involves the processes and techniques that are employed in resolving disagreements outside the courts. Either, alternative dispute resolution can be defined as the collective form of ways employed in the process of dispute resolution either in the presence of a third party or not.
Though, there has been resistance to the process that has gained acceptance with time and is nowadays used as an alternative in both the legal systems and general public. The European Mediation Directive of 2008 made it a mandatory procedure used before any trial begins. It ensures a high level of confidentiality as it involves only the disagreeing parties and a third party who helps them reach a settlement. This differs from the court process that tends to be a public hearing and the courts rarely overturn its decisions. This paper, therefore, explores alternative conflict resolution methods employed in resolving disputes.
Alternative conflict resolution methods can be classified as negotiation, mediation, collaborative law and arbitration. Either, other methods of alternative conflict resolution also exists with conciliation being one of them. They are used alongside the laid down legal systems and do vary depending on the country and culture they are employed. Historians later classified them in informal dispute resolution outside the judicial system and the formal method that is related to the judicial system. The main categories of alternative dispute resolution methods are discussed below.
Negotiations involve the use of direct or indirect communication. It is usually the first to be attempted during the process of conflict resolution and participation is voluntary as no party is coerced in taking part. It does not require the involvement of a third party and gives the parties involved an opportunity to take control of the whole process. The parties usually strive to reach an amicable solution that is agreeable to both of them. It is used to solve problems that currently exist or even lay down frameworks upon which future engagements will take place. It is unique and commonly used alternative.
Characteristics of negotiation
It is a voluntary process whereby people are not forced to take part in it and can choose to agree with the outcome or disown it. It can either be a bi-process or a multi-process depending on the number of individuals involved, as they can either be two or more. The process is also none adjudicated as it only involves the parties feuding in a disagreement. Either way, it is said to be an informal process that does not have laid down rules and procedures to be followed, making it flexible as its scope will highly depend on the choices of the parties involved. Consequently, it ensures a high level of confidentiality as its findings and resolutions are not made public or accessible by any other party other than the parties involved.
There are several advantages in using negotiations as an alternative conflict resolution method. The most notable advantage is that, it is highly flexible as it is only the parties involved in a disagreement that takes part in it. It can also not guarantee success to an individual party as it provides a fair level playing ground with equal chances of negotiating. It is usually considered the most appropriate method to be used when the parties involved do not want to include the services of a third party. This usually preserves and promotes cordial relationship between differing individuals as it helps them come up with agreements that best suit their interests.
Even though there is a variety of advantages of negotiating, it has its own shortcomings. Most notably, it does not provide a good chance for people who have weak negotiating skills. The parties with superior skills will use it to disadvantage those with weaker negotiating skills. Either, it requires that parties have a good understanding of the negotiation mandate. In situations with doubts, parties do become ineffective in the negotiation process. The general absence of a neutral party may also make individuals with tough stance not to reach an agreement. The idea of it being voluntary makes parties not compelled to engage actively in the process. They can opt out in the process leading to wastages in terms of time and money that has been invested in the whole process. It does not also guarantee that the parties involved will act in good, thus limiting the level of trustworthiness as parties will perceive each other as being ill intent.
It is the second most used alternative dispute resolution method that has concrete and binding effects. It usually involves the employment of a third party who helps the feuding individuals resolve their differences. It is usually structured with laid down timetable to be followed and dynamics that are otherwise not found in the ordinary talks. It employs the use of various techniques that highly depend on the skills of the mediator.
Several advantages accrue from the usage of negotiations. Compared to the court processes, it has been found to consume less time and is highly confidential. It also increases the level of control that the parties have on the process, thus producing resolutions that are acceptable to both the parties. This ensures that they both work towards reaching an agreement that will lead to a high level of compliance.
There are few disadvantages associated with mediation. They mostly refer to time wastages as individuals have to strictly follow a prescribed time table. This could lead to inconveniences as parties will tend to adjust their programs to conform to the time table. Either, it has been found to be costly as mediators charge a fee on their services depending on their rates.
It is similar to the litigation process that involves private hearing in the presence of an arbitrator usually appointed by the state, courts or organizations that are involved in disputes. Employment institutions majorly use it to iron out differences between them and their employees. The arbitrator listens to the parties involved and then makes decisions that are independent and based on the facts presented. The decisions lean mostly on the rights of individuals that are otherwise denied. It concerns itself with fair treatment of people and its resolution is binding. It is a legal process that highly depends on the court procedures of arguments by the parties involved.
The main advantage of arbitration is that parties have the privilege of choosing the person they want to arbitrate in the disagreement. The process is also private and can be held anywhere that the parties find convenient to them. The general procedure followed can be modified to suit the situation at hand, making it flexible to use. The parties can decide to send representatives who will act on their behalf making it less inconveniencing. The awards and resolution made by the arbiter can also be applied over other methods of dispute resolution except litigation which is a court process and other arbitrations.
Arbitration has been found to be very costly as it involves the services of a professionals who do charge a fee. It also involves complex and complicated procedures heavily relying on the court processes. This can sometimes be confusing to the parties as most of them will not be familiar with the court processes. There also exists a possibility of appealing the decisions reached through the arbitration process. This leads to excessive time wastages dragging the whole procedure of reaching an agreement. Either, legal assistance is not provided in the arbitration process. This can be disadvantageous to the people who lack resources and capacity of getting the services of a lawyer.
It is a legal procedure mainly used to settle family disputes like divorce cases. The parties have to refer to a lawyer in order to avoid the uncertainties of the court process. This kind of a dispute resolution best meets the specific demands and needs of the parties involved.
Collaborative law enables the parties involved to be in charge of reaching the resolutions concerning their personal life. It provides an environment that leads to speedy resolutions based on cooperation and dignity it ensures. Either, it involves the signing of agreements by parties to openly and genuinely engage in the process with honesty and in good faith. The parties, therefore, work as a team and not sides that oppose each other. The meetings are scheduled in a manner that does not inconvenience either of the party. It concentrates on the interest on the individual parties involved on the basis of resources and realities on the ground as opposed to mere wishes and entitlement to rights.
This is a form of arbitration that is characterized with fewer formalities and does not require the existence of a prior agreement between the feuding parties. The parties must be willing to engage in dialogues with each other to explore common grounds upon which an agreement acceptable to both of them can be reached. It involves the services of a conciliator who helps the parties involved to understand the underlying motives and needs of one another. It does not seek solutions to the problem at hand but merely helps parties understand the factors at hand. The conciliator, therefore, does not impose any decision on the parties but can give his opinion that can act as an alternative to one advanced by either party.
In conclusion, alternative dispute resolution methods have been employed widely both within the legal framework and at societal level. Ancient societies also used them to resolve disputes and it has been found beneficial as it reduces the backlog and congestion in the courts.