Analysis Alternative Dispute Resolution

Topics: Dispute resolution, Alternative dispute resolution, Mediation Pages: 5 (1955 words) Published: September 11, 2007
Discuss the processes available in alternative dispute resolution and explain its advantages and disadvantages.

Alternative Dispute Resolution (ADR) involves dispute resolution processes and techniques that fall outside of the government judicial process. There has been moves against ADR in the past by entities of many political parties and their associates, despite this, ADR has gained inclusive acceptance among both the broad community and the legal profession in past years. In fact, many courts now entail some parties to remedy to ADR of some type, usually mediation, before allowing the parties' cases to be tried. The increasing attractiveness of ADR can be clarified 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 obtain larger control over the selection of the individual or individuals who will decide their dispute. ADR holds an extensive, easily influenced and diverging choice of processes for finding solutions for disputes which are personified by structured negotiation and consensus. It is regarded that arbitration is a familiar ADR technique, however, it is a more of a official adjudicative and adversary technique – initially a confidential litigation process – which has more commonality to litigation than the more original consensual processes which symbolise ADR. As simplified by Angyal (Alternative Dispute Resolution, 1987, p. 11): "The key difference between ADR and those traditional techniques of litigation and arbitration is that ADR techniques are used to produce a resolution to dispute through a negotiated agreement while litigation and arbitration are processes by which a result is imposed on the parties." We can say that many issues arise with terms. A past Chief Justice of Supreme Court of New South Wales and one of Australia's powerful proponents of ADR, named Sir Laurence Street, has commented that: " It is not in truth ‘Alternative'/ It is not in Competition with the established judical system. It is an Additional range of mechanisms within the overall aggregated mechanisms for the resolution of disputes. Nothing can be alternative to the Sovereign in the discharge of the responsibility of resolving disputes between state and citizen or between citizen and citizen. WE can however, accommodate mechanisms which operate as additional or subsidiary processes in the discharge of sovereign's responsibility. These enable the court system to devote its precious time and resources to the more solemn task of administering justice in the name of sovereign." (Street, ‘The language of alternative dispute resolution' (1992) 66 Australian Law Journal, 194) We must not consider ADR as simply a reduced relative to the reality of the courts, this is important. In reality it is possible to conserve the business-related relationship only when complicated and constructed way is aimed at bringing the parties to an interceded explanation by way of resolution. The actuality is that most cases are resolved despite the matter. One of the main factors of ADR is that the process aims at getting a resolution at a minimal cost and as fast as possible. However ADR does not stop a lawful action. If the ADR is not successful in resolving the matter (dispute) then both parties can take the issue to the courts. The achievement of an ADR would yet propose that resort to the courts is much less likely if an ADR process was used. ADR is commonly simplified into a number of common techniques; these include negotiations, mediation and arbitration. This is because ADR falls on the accord it preserves in an easily influenced manner both in the method of resolving the dispute. Contribution in terms of a Facilitated Negotiation is done by choice and generally These negotiations are used for informal settlement of disputes and are structured and is a process which involves assistance from a third party...
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