Legal provisions in any territory ensure that citizens are protected from offense by others or that their properties are equally protected. Such offenses are at times inevitable leading to individuals and parties being in disputes. There are legally recognized institutions that have been instituted to examine constitutional violations of people’s rights and freedom, the source of such conflicts, and prescribed penalties for the violations under legal court systems.
Dispute resolution outside the legal framework has been developing over time. The dispute resolution outside the legal framework is called alternative dispute resolution. This paper seeks to discuss the topic of alternative conflict resolution. The paper will give a description of the topic together with analysis of legal and ethical issues that surrounds the topic.
Alternative Dispute Resolution (ADR)
Alternative dispute resolution (ADR) is a general term for dispute resolution processes that are done outside judicial systems and formalities. Such processes include negotiations that are facilitated to try and ensure that parties to a dispute settle their conflict before it can be subjected to a judicial process.
Initiatives such conflict resolution in communities or even among communities also falls under the alternative dispute resolution system. The alternative dispute resolution majorly adopts involvement of the aggrieved parties but can at times call for facilitation from a third party to the conflict. Negotiations are forms of alternative dispute resolution in which the parties in conflict are able to organize themselves and resolve their conflict without any involvement of a third party. There are however instances when the parties to a dispute are not able to solve their differences at individual levels and calls for a third party are made to facilitate the talks for a solution to the problem. The involvement of a third party qualifies such resolution efforts to be mediation initiatives. Alternative dispute resolution can either be binding or nonbinding depending on the nature that is adopted in the process.
Negotiations and mediations are processes by which the parties to a conflict find a solution to their problem based on their willingness. Involvement of a third party in the resolution process is just to facilitate the mediation and not to enforce solutions. Implementation of such agreements in negotiations and mediation processes are thus non binding to the parties that agree to such negotiations.
ADR on the other hand becomes binding if the involvement of the third party is to make a decision in the process contrary to facilitating the process. Under binding ADR, the parties in conflict do not necessarily have to be comfortable with the decision arrived at but must adhere to it.
Alternative dispute resolution can also be categorized as either mandatory or voluntary. The process is said to be a mandatory alternative dispute resolution if it has been provided for by a judicial authority. Under these provisions, the parties to the dispute are compelled to seek ADR prior to any judicial process.
A voluntary ADR is on the other hand encountered by the free will of the parties to the dispute to engage in the process. Though a variety of alternative dispute resolution approaches are available, a hybrid combination of these classes is also witnessed in dispute resolutions (Flexstudy, n.d).
History of ADR
Alternate dispute resolution is not a new concept in conflict resolution. It is identified to have been the primary approach that was used in ancient traditions to settle grievances that arose between individuals or communities.
The only new thing that has been realized in the recent years has been the development of a variety of models of the resolution approach. In the United States, for instance, alternative dispute resolution advanced in the 1970s with civil bodies adopting mediations as a tool to fight for civil rights.
The developments and further evolutions of the resolution process led to its recognition and further adoption into the country’s legal framework. It was then adopted to help in reducing congestion and even cost of solving disputes as was realized in the judicial systems. The conflict resolution approach was then expanded into commercial institutions to enhance resolution of disputes among corporate entities. This particular move further developed the use of ADR as a tool instead of the use of judicial processes.
The widespread use of the approach together with its simultaneous development in the United States led to its incorporation in the country’s laws with provisions for legal bodies to oversee ADR processes. After its developments in the United States, the use of alternative dispute resolution spread to other countries across the globe. It is reported that both developed countries as well as third world countries have gradually been adopting the use of ADR to resolve issues that pertains to “social, legal, commercial and political goals” (USaid, 1998, p. 5).
Features of Alternative Dispute Resolution
The alternative dispute resolution is significantly different from the judicial processes in a number of ways. One of the major characteristics of ADR is its informality. Contrary to the judicial approach, there is a lot of flexibility with respect to alternative dispute resolution approach.
The strict laws and records that are kept in courts with respect to proceedings and application of judgment are not encountered in ADR processes. Its flexibility with respect to time that is normally negotiable among litigants also makes it to be more convenient as compared to judicial procedures. The level of flexibility is attributed to the lack of formal procedures that are encountered in judicial processes.
Another feature of the alternative dispute resolution is its identification of equity among the litigating parties. Contrary to the application of laws in which provisions might not be favorable to either of the litigants, the ADR process is based on a mutual understanding and corporation of the parties on a leveled ground.
The parties are thus assumed to be equal in the negotiation or mediation processes with a moderation of a third party if at all the litigants cannot agree among themselves. Contrary to the judicial processes that rely on precedents for determination of resolutions, ADR relies on the general law of equity to establish a resolution that is agreeable by all the parties to the given conflict.
The use of ADR also involves the active participation of the litigants in the search for solution to their conflict. This gives the process an advantage of generating a solution that is fair to both parties and which can at the same time restore or create a good relation among the conflicting parties (USaid, 1998).
Limitations of Alternative Dispute Resolution
Even though the alternative dispute resolution approach is characterized with a number of advantages that include its informality, its flexibility and event, direct participation of the parties in conflict to attain an efficient, less costly and equitable resolution is faced with a lot of challenges.
One of the limitations of the approach is that it is not effectively applicable to all types of problems. This limitation is particularly realized with respect to the nature of the subject dispute or the parties involved in the dispute.
The need for equity in the process is for example greatly challenged in cases where parties to a conflict are at different levels of power. Under this case, a significant level of oppression due to influence can be realized in the process. Lack of expertise in the resolution approach is also a challenge that can lead to imbalanced resolutions in the processes.
It is also identified to be weak with respect to resolving conflicts in which one party is defiant and continually aggrieves the other. This is because the resolution approaches lacks the legal authority to draw sanctions for injunctions or punishment to the aggrieving party.
The fact that the alternative dispute resolution has a number of advantages over the judicial process that may make it favorable for parties and individuals in conflict is at the same time identified as a threat to the judicial process that is seen to be losing its popularity in particular cases. This poses a threat of lack of support by authorities which are more interested in the stability of the legal systems. Alternative dispute resolution therefore faces lack of direct support from authorities, a frustration to its stability (USaid, 1998).
Legal Issues in Alternative Dispute Resolution
The establishment of alternative dispute resolution outside the legal judicial framework does not completely alienate the resolution process from legal aspects of the jurisdiction in which the resolution exercise is being undertaken. A consideration of international law, for instance, reveals an incorporation of the alternative dispute resolution in some of the laws.
According to Ingenhousz (2011), “the international commercial conciliation of June 2002 and European directive of May 2008” (Ingenhousz, 2011, p. 158) offers considerations for alternative dispute resolution. These provisions just like other internationally established laws, treaties and conventions remains to be legally binding in countries that are parties to them. It thus means that mediations can be subjected, with considerations to the agreements of the parties in a conflict, to these laws especially if the litigating parties are from different countries that have adopted the laws. In such a case care has to be taken to ensure that there is conflict of interest as pertains to the laws.
Legislations in different countries have also been realized that affect alternative dispute resolution. There are countries in which mandatory alternative dispute resolution approaches are undertaken in courts subject to some judicial provisions. The international commercial conciliation also provides that though parties to a conflict have the right to choose their appropriate alternative dispute resolution approach, a regulation is offered by the law to the adoption mediation as a process of the resolution. The administration process of an ADR process also occasionally draws in some legal aspects. The necessity of a non partisan third party, which may at times be difficult for the disputing parties to settle on, also attracts the application of legal framework in which courts can be called upon to identify the third party.
There are also legal provisions in some countries that relates to the appointment of the third party when such actions are needed from a judicial body. Alternative dispute resolutions that pertain to conflicts arising from contractual agreements are also normally based on the laws that governed the initial contract (Ingenhousz, 2011).
According to Daras and Ibarra (2011), there are significant legal considerations over any form alternative dispute resolution. The authors explained that factors such as “validity of ADR clauses, the suspension of limitation periods and the enforceability of arbitral results” (Daras & Ibarra, 2011, p. 196) are some of the basic legal considerations that are made over ADR.
They further explained that an agreement over an alternative dispute resolution by the parties to a conflict forms a contract that is binding in law. Such agreements, in jurisdictions under which they are considered to be contracts, are therefore subject to legal terms under laws of contracts. This would imply the legality of the alternative resolutions over implementation of agreements. Failure by a party to comply with resolutions can thus lead to judicial processes over breach of compliance.
Validity of application of the alternative resolution approach might also be a factor in some jurisdictions. Legal provisions may outline types of conflicts that can be arbitrated through alternative dispute resolution and those that can only be handled through judicial processes. It is therefore evident that though the alternative dispute resolution is traditionally done outside judicial set ups, they are in most cases subject to legal provisions that range from domestic laws to international laws (Daras & Ibarra, 2011).
In the United States, judicial provisions allow courts to delegate dispute resolutions to alternative approach. Judges in judicial systems are, for example, allowed to refer cases to ADR before such cases can be determined in courts. ADR under such circumstance tries the resolution and can refer the case back to the judicial system if no solution is established.
There are also some particular cases that are legally supposed to be determined by alternative dispute resolution and not the judicial system. In California, for example, conflicts that relates to custody of children are handled under ADR. It is also important to note that ADR resolutions are not binding in some countries such as the United States (Atlas et al., 2000).
Ethical Considerations of Alternative Dispute Resolution
Since alternative dispute resolution has evolved to be a profession like any other, it is subject to codes of practice that are meant to safeguard the interest of parties to a dispute. The ethical applications are realized over the third party whose duty is majorly to facilitate the process to success. For success and effectiveness of an ADR process, the third party must possess some ethical qualities. The first ethical necessity for the third party is the required competence to gear the process to an agreeable solution.
Since it has developed to be a profession, a third party must poses competence for the services to be offered. There is also need that the third party be impartial in the resolution process and maintain confidence of all information that is revealed by the parties during resolution. Other ethical values include restraint from causing harm to the parties and avoiding conflict of interest (Justice, n.d.).
Alternative dispute resolution is a process of settling disputes between parties outside judicial systems. Though the approach has long been in existence, its modifications and developments were realized towards the end of the twentieth century. The resolution system is however faced with a number of limitations besides being subject to legal and ethical issues.
There is a need for more studies and researches to be carried out on alternative dispute resolution as it presents a better way of resolving disputes outside the courts. The alternative dispute resolution also presents an opportunity to reduce cases of prison congestion which in a big problem in the society.
Atlas et al. (2000). Alternative dispute resolution: the litigator’s handbook. New York, NY: American Bar Association.
Daras, P & Ibarra, O. (2011). User Centric Media: First International Conference, UCMedia 2009, Venice, Italy, December 9-11, 2009, Revised Selected Papers. New York, NY: Springer.
Flexstudy. (n.d.). What is ADR. Flex Study. Web.
Ingenhousz, A. (2011). Adr in Business. Practice and Issues Across Countries and Cultures. Netherlands: Kluwer Law International.
Justice. (n.d.). Ethical considerations. Justice. 2011. Web.
USaid. (1998). Alternative dispute resolution practitioner’s guide. Democracy and Governance Publications. Web.