Alternative Dispute Resolution
Alternative Dispute Resolution
Introduction
Alternative Dispute Resolution (ADR) is an option that is becoming more and more popular which allows people to resolve their disputes outside the court in a comprehensive and cooperative way. ADR is an approach that is quick, less stressful and cheaper than going to court. The ADR processes include mediation, arbitration, neutral evaluation, and collaborative law.
In this paper I will be explaining my own personal experience/research using an ADR method, particularly a mediation method that avoided getting to a trial at a state court. A brief description of the business involved in the dispute, how the case would of have been processed through the court system and discussing the difference in cost and benefits of going through traditional litigation compared to pursuing ADR in mediation.
Alternative Dispute Resolution Based on Personal Research and Experience
Take, for instance, the hypothetical case of two best friends who co-own a restaurant. One friend decides to work 20 hours a week to her business partner’s 40 and resentment – along with exhaustion – grows. Or perhaps one partner ‘liberates’ a few too many meals in his dining room at home and is rightly accused of stealing by his former friend. Tension builds and before long, a friendship is on the verge of being dashed to the rocks.
Differences of opinion can also obviously occur on a much larger scale, e.g., in the case of embezzlement or fraud. The first thought that may come to mind when such problems arise is the possibility of suing one’s business partner for a share of the company and/or profits; however, litigation is often time-consuming and disordered. Mediation offers some clear alternatives to litigation, especially when one or both parties involved want to solve their dispute without destroying a salvageable friendship.
Since the beginning of the Republic, business decision-makers have railed against the legal system-its complexities, its costs, the diversion of resources, and the general sense of helplessness they feel when confronted with the lawsuits that inevitably arise when relationships go sour or untoward events occur. At the core of this response is the frustration executives feel at losing control over their fate and the firms they manage when thrust into the bowels of the civil justice system. (Hayford, 2000).
ADR methods and processes
Although there are more than two different ADR methods, the most commonly used nowadays are mediation and arbitration, below we will discuss briefly both of them and why would the methods would have been better compared to a litigation process that have been occurred.
Mediation. Though mediation remains the most common "alternative" method of dispute resolution, it also remains an area in which there is little, if any, discussion by appellate courts in any state. But again, this is as it should be. The beauty of mediation is its elegant simplicity. Mediation continues to gain favor, not because there are elaborate rules in place to provide it with structure, but precisely because there are hardly any rules which apply. Courts, as a consequence, have little to oversee, interpret, or regulate (Pryor, W. 2009).
In mediation, a neutral intermediary; like a referee “the mediator”, helps each party reach a mutually agreed settlement on the dispute. If a settlement is agreed upon then it will be recorded in a legally binding contract. (LawTeacher, UK, Nove)
Arbitration. Arbitration is an out-of-court method of dispute resolution in which a third party, called the arbitrator, sits with the two parties disputing, listens to each party’s position on the dispute (usually argued by their lawyers), and then makes a final decision in favor of one of the two parties. The arbitrator’s decision is a binding decision with legal authority that usually cannot be appealed.
"In considering referral to arbitration, the question is not which forum is quicker, cheaper, or more convenient, but which one the parties picked."(FN10). For centuries arbitration