Alternative Dispute Resolution

What is Alternative Dispute resolution?

The Court Procedure Rules Glossary of England and Wales, describes it as a collective description of methods of resolving disputes otherwise than through the normal trial process.

Another term for Alternative Dispute Resolution is Mediation

The Law Reform commission defines it as;

a broad spectrum of structured processes, including mediation and conciliation, which does not include litigation though it may be linked to or integrated with litigation, and which a involves the assistance of a neutral third party, and which empowers parties to resolve their own disputes.

It also states;

defines Alternative Dispute Resolution as a broad spectrum of structured binding and non-binding processes, including mediation, conciliation and arbitration, but does not include litigation, though it may be linked to or integrated with litigation. ADR processes can involve the assistance of a neutral third party and can empower parties to resolve potential or actual disputes

It should be noted that, in spite of its increased usage in this country, there is of yet no statutory provision which defines Alternative Dispute Resolution

It exists to resolve disputes, without requiring litigation, and usually involves the help of a third party.

While there was a widespread resistance to Alternative Dispute Resolution throughout history, in recent times it has become incredibly popular.

It has become almost compulsory in jurisdictions which have a very slow Court system, such as India. Indeed, most contracts between businesses will now state that should a conflict arise, they shall first turn to Alternative Dispute resolution, before going to the Courts

The rising popularity of ADR can be explained by the increasing caseload of traditional courts, the perception that ADR imposes fewer costs than litigation, a preference for confidentiality, and the desire of some parties to have greater control over the selection of the individual or individuals who will decide their dispute.

It has become very popular throughout the European Union, England and Wales, and also in Ireland

Justice Sandra Day O’Connor, a retired United States Supreme Court Judge said the following;

The courts of this country should not be the place where the resolution of disputes begins. They should be the places where the disputes end – after alternative methods of resolving disputes have been considered and tried

This is in essence, the mainstream view of Alternative Dispute resolution. The Courts now feel that they should only become involved after all alternative forms of resolving the dispute has failed

There is a problem with the terminology used to encompass alternative dispute resolution. The word ‘alternative’ for example implies that it is a separate process from the legal system when it should in fact be seen as an integral part. It also hints that alternative dispute resolution is a new process which is far from true. Alternative dispute resolution is as old as our legal system itself, if not older. In fact, most civilisations in ancient history would have had someone such as a village elder to resolve conflicts. This can be seen as a very early and primitive form of mediation

Even the word ‘dispute’ is under contention, as many feel that it is too narrow. Conflict avoidance, conflict management and conflict resolution are all examples of what alternative dispute resolution encompasses.

Australia for example, refers to it as ‘external dispute resolution. Many other terms have been touted, such as innovative, additional, appropriate to name a few.

Alternative Dispute resolution is becoming more and more important, particularly in civil cases,  but also in criminal cases, especially where juvenile defendants are involved

There are many reasons Alternative Dispute resolution has become so popular. These include;

·         Cost- It can be a lot less expensive to resolve a conflict this way than going through the courts. As legal expenses have soared in recent decades, alternative dispute resolution is being seen by many as a far cheaper option

·         Speed- Court cases require lengthy hearings and most take years before they can be decided. Those who want a speedy solution will turn to Alternative Dispute resolution as a means of ending the conflict quickly. This is especially true in many cases regarding family law

·         Burden on Courts- As the legal system has become more accessible for the lay person in recent times, a huge backlog of cases has arisen in the Courts. Alternative dispute resolution is a means of lifting this burden

·         Informality

·         Flexibility- not bound by precedent or procedure so more scope for manoeuvre

·         Negotiated settlements- rather than winner takes all style rulings reached by courts, Alternative Dispute resolution allows both sides to decide how what suits them best

·         Provides wider range of solutions than litigation

·         Expertise

·         Privacy

·         Less antagonistic

·         Higher chance of reaching a satisfactory conclusion