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Adr Impact on the Substance of Justice Exploratory Essay

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Introduction

Traditionally, the courts have been seen as the last resort when it comes to arbitration of justice among parties. The court encourages parties engaged in legal disputes to solve cases using “alternative methods” which do not involve the court because the norm is that a court has to rule in favor of a given party.

Alternative dispute resolutions encourage parties to explore other options of settling legal disputes either by agreement or by involving a neutral third party who may act as a mediator (Law Reforms Commission, 2008, p.25-26).

Efficiency and cost effectiveness of the ADR processes

The emergence of the ADR in countries like Ireland has facilitated speedy resolution of disputes. If the disputes are to taken to court, they can result in congestion of cases and cause delays in resolving other cases. This fact has posed a serious challenge in the judiciary system.

The ADR has created more time for serious cases like criminal ones, major legal queries and provided for improvements of the normal court processes (Dato’ Syed Ahmad Idid, 2004, p. 2).1The ADR is a more efficient and less costly method of resolving conflicts.

For instance, in cases where the ADR process is facilitated by the courts, the expenses incurred are usually settled by the state. In cases where the mediation process is not successful, the extra cost or expenses are usually shared equally among the parties in that dispute.

Nevertheless, the ADR is not at all considered as a cheaper option when it comes to litigation expenses (Law Reforms Commission, 2008, p.27).2

Relevance of the ADR as an alternative method of settling disputes The ADR process facilitates the involvement of the affected party in making new agreements that can prevent future occurrences of a dispute. By so doing, it empowers the involved parties.

The courts as well as the judges form the basis upon which the justice system operates in the modern civilization. The ADR has been looked at as an alternative means in which participants in legal disputes can easily access justice. Nevertheless, this fact has only been viewed in certain cases like family disputes, commercial disputes, property disputes, power imbalances and medical disputes (Ilana and Bard, 12).

ADR, its origin and development

For centuries, communities and societies at large have usually created familiar processes of solving disputes. Furthermore, the methods used in the modern ADR are not alternative methods but are merely an adaptation of the traditional methods used to solve disputes. At a certain point in time, the courts followed the ADR process.

Artifacts from areas like Egypt and Mesopotamia have been discovered by archeologists. The artifacts indicate the use of ADR in the early civilization. The development of the ADR within the Western world can be attributed to the ancient Greeks. This fact was as a result of overcrowding in the courts of Athens. The arbitrator was introduced around 400 B.C (Barrett, 2004, p.7)3.

During this period, the arbitrator had a duty to resolve issues in a friendly manner. If the process was unsuccessful, then a witness was included. This fact was portrayed in traditional Greek poems.

Disputes are unavoidable circumstances that arise from human interactions within a given society. Conflicts can be defined as aggravated differences between individuals hence making them unique. The society has devised ways of dealing with and resolving disputes. Disputes arise when given parties feel unfairly treated (Miller and Sarat, 1980-1981, p.525-527)4.

ADR process

Negotiation

Negotiation is an act in which parties in a dispute agree to end a conflict so as to reach a settlement. One of the qualities of a negotiated deal is that there is no third party involved and the parties in a dispute may decide to settle it amicably during the negotiation.

Mediation

Mediation refers to the process of settling disputes that engages the use of an independent third party. In this process, the participants volunteer to be a part of this process (Ivancevich and Matteson, 13).

Mediation is usually associated with commercial disputes while conciliation is always associated with family and industrial disputes. Bodies such as the KLRCA (Kuala Lampur Regional Centre for Arbitration) ensure confidence during a mediation process as stated in rule 11 (Dato’ Syed Ahmad Idid, 2004, p. 5)5. In the case C versus RHL, where Colman, J, referred the case to mediation because he believed the interest of RLH and its owners would be best served.

Adjudication

This process was initially introduced in the U.K through the Housing Grant and Construction Regeneration Act (HGCRA) in 1996 according to the report by Sir Michael Latham’s report “Constructing the Team” in 1994 which reported the troubles faced by the U.K construction company. As compared to arbitration, adjudication is a faster process and is therefore preferred.

Arbitration

Arbitration is considered a better choice when it comes to litigation as the parties engaged in the law suit can choose a tribunal which they feel is experienced enough and has relevant expertise and knowledge to resolve the dispute in question.

The litigants may incur little expenses and they may also have a choice of holding their proceedings in private. Unless agreed otherwise, the parties in arbitration are expected to keep confidential all matters that have arisen in that process as provided by the KLRCA rules in accordance with arbitration, rule 9 (Dato’ Syed Ahmad Idid, 2004, p.8)6

ADR process

The ADR system can be used to generate great improvements in the settlement of disputes. However, it needs adequate time to be structured and made suitable for each country. The ADR requires patience, support and proper management to constitute. This fact however requires time to be achieved.

As stated by the former chief justice of Bangladesh, Justice Mustafa Kamal, in order for the ADR process to be successful, it has to be motivated by involving at least two to three generations of legal experts to support the labor required including a well thought out plan.

In addition to that, he urges the courts to assign relatively less complicated cases to the ADR mediators at first (complex cases being those that require more judicial know how). It is anticipated that with time, the ADR process will improve and that it will be able to handle complex assignments. ADR and its role in improving access to justice The ADR acts as a means of reducing the caseloads in courts.

It has so far provided the needed access to justice for the disadvantaged community members. The management of the court cases expeditiously and as practical as possible is what the courts are more concerned about. Concerns have however been raised that the ADR system may neither deliver justice nor may it change the perceptions of people about justice (Lola Akin Ojelabi, 2011, p.4)7.

In my view, the justice system ought to provide other alternatives and approaches of resolving disputes other than the ADR and the court system in order to enhance the access to justice by people especially those from the lower cadres of the society.

Thus, access to justice for one may as well involve exposure to a range of different judicial processes. Justice may be seen to be delivered by a judge or a panel of judges after listening to judgments and going through the provided evidence, but to others, justice may be as good as an apology or a change in the administrative procedures in regard to a particular issue.

Hence, it is clear that there are certain situations in which the ADR provides the kind of resolutions that the courts cannot.

The study will investigate a case study carried out in Alder Hey Children’s hospital in Liverpool, England. The specific hospital in question retained organs obtained from children who had died in that hospital without permission from their parents. This action by the hospital resulted in a dispute between the parents and the hospital.

Because of the high number of claimants (over 1,000), the claimants were divided into group litigations. This high number was clearly going to pose a challenge to the courts as it would take a lot of time to resolve. Furthermore, the sensitive nature of the claims made them unsuitable to be handled in the courts.

Both parties in the dispute agreed to a third party which was the Centre for Effective Dispute and Resolution (CEDR) to act as a mediator. The case was resolved, the defendants apologized to the families, a press conference was held where the hospital admitted to its wrong doing and a contribution was made to the claimants’ charity of choice.

This case study provided the context in which the ADR would best fit. The number of claimants in this case could have caused a considerable burden to the courts and its resources (Law Reform Commission 2005, p.76)8.

The ADR and its role in improving the substance of justice Many people have continued to seek legal redress through the ADR process because of reasons linked to cost and its propensity to expedite legal processes in a fast way. The advantages of the ADR lie in its cost-effectiveness and efficiency. The two advantages cannot be appreciated if the ADR cannot deliver a fair and convincing verdict.

In given instances, the ADR can also be lengthy especially when the matter becomes complex and the verdict does not meet the expectations of both or either parties engaged in a dispute. The ADR has also proven to be flexible and the process actively integrates the views of all parties engaged in a dispute.

In an ADR process, confidentiality of certain aspects of the process especially on matters that are linked to witnesses must be upheld. However, there is a danger that may arise as a result of embracing the advantages of the ADR process.

The danger involves the risk of participants of the process losing the protection that the official justice system provides. The ADR may not always deliver justice to all the parties involved especially the third party ones.

Fairness in procedure as well as outcome

Discussions involving justice in the ADR are entirely focused on the ADR process itself. This aspect is enhanced by the fact that the ADR is regarded as an acceptable process in legal proceedings. In law suits, clients may feel that they do not have control over the disputes and that the proceedings are not being handled the way they want.

The ADR system gives the participants the advantage of deciding how they will handle the disputes (National Alternative Dispute Resolution Advisory Council, 1997, p.20)9. Procedural issues as they pertain to the ADR are as important as the outcome of the process itself.

Legal experts argue that the process justifies the outcome. The important factors that might have an effect on defining a just process are discussed below. It is important to note that all the parties involved in the ADR process are usually self-referrals. They should understand all the terms of engagement because they engage the process on the basis of their own choices.

The process facilitates the participation of all the parties adequately. The legal proceedings in the court room engage all the necessary steps like the normal judicial process does. These steps include cross-examination of the witnesses by the prosecution team and defiance teams. A power balance between the involved parties usually exists and this fact allows access to all pertinent information.

The involvement of the third party should not serve to deny justice to either of the parties involved in the ADR process. In case the ADR process finds it impossible to give a credible verdict, the case can then proceed for adjudication in the courts of law.

Fairness in reference to the process and the outcome is highly necessary and is the core mandate of the ADR. This fact can be argued with reference to a mediation case involving the Aboriginal people and the non-Aboriginal people.

The case provided a forum for the Aboriginal people to express their grievances part of which included foreign encroachment of their cultural heritage by the non-Aboriginal community that did not initially listen to the concerns of the Aboriginal community.

The ADR did not only provide the necessary conditions for the case to be heard but the concerns of the Aboriginal community were heard and determined by the ADR thereby delivering justice to the Aboriginal community. National Alternative Dispute Resolution Advisory Council, 1997, p.35).

The achievement of the three levels of concern has usually been said to be important to the delivery of a fair and just outcome in an ADR process (Christopher W Moore, 1991, p.37)10. The levels include the substantive interest which involves material requirements, for instance, money as well as time which tend to be of major focus of the ADR negotiation procedure.

The second level involves the procedural interest which is the stage in which the various parties agree on the method and the approach to be used in determining the outcome. The third stage involves the psychological interest that captures the feelings and underlying relationships of the various parties involved in the dispute.

This stage is usually crucial because it determines the possible points of compromise that the parties can reach and hence the probable options that can be made to end the stalemate. In a formal justice context, the law has the power to decide what is fair and just, nonetheless, not all parties may appreciate the due course of law or certain provisions enshrined in the law.

The ADR as a legal process gives provisions to dissenting parties to provide concrete grounds that may be understood by the ADR which might not necessarily reflect the exact position of the law but which must also be reasonable when evaluated within certain social, religious, cultural and circumstantial contexts.

Therefore, this fact means that the ADR provides an alternative dimension in arbitration of disputes that is totally different from that offered by the courts of law. The ADR provides the participants with the chance to “stay away” from the “stereotype” ideology of a fair and just ruling. The ADR may allow the conflicting parties to express their own needs, standards and wishes.

For instance, a woman may want a separation from the husband but still want to uphold the good relations between the children and their father.

The woman may accept the offer of separation with her husband without necessarily being offered half the property belonging to her husband. In a court of law, the woman would have to be given half the property belonging to the family or her husband and in addition, she would claim custody of her children if they were 18 years and below.

The ADR gives individuals an opportunity to express their own preferences concerning certain issues which the courts of law may not allow. The ADR does not base its verdict on the law alone but on mutual agreement between conflicting parties.

Whereas the court of law depends on clauses and various provisions enshrined in the law of the land, the ADR depends on reasoned agreements and a common position determined by the parties. The activities of the ADR do not however put it into disrepute. It still conforms to the societal ideologies when dispensing justice. One disadvantage of the ADR is that it can be misused by certain selfish individuals.

In the example given above, if the wife agrees to the husband’s requests because of lack of legal counsel and ends up with fewer assets than would be appropriate, then the ADR cannot be trusted as a credible process.

The result would be deemed unfair because it would condemn the woman to a life of suffering probably due to lack of adequate finances to sustain her lifestyle and to support her children. The woman may seek legal redress in a court of law after the process of the ADR if she feels that the right decision has not been arrived at.

Involving a dispute resolver to achieve a fair outcome

In certain situations, opinions reached may differ and the need to involve a dispute resolver may be required. Generally, it is accepted that a dispute resolver is limited in the kind of options he may take because his duty is to make the process as fair as possible.

In accordance with these views, the dispute resolver may have the responsibility of making sure that the participants in a dispute have an understanding of their choices as well as their personal interests. The dispute resolver is not supposed at any point to impose any ideas upon the participants (Judith L Maute, 1990, p.347)11.

Furthermore, the “standard of practice for lawyer and mediators in family disputes” that was formally accepted and adopted in 1984 by the American Bar Association, indicates that a mediator’s interest should be fairness and he has a responsibility to evade unreasonable outcomes.

The mediator has a responsibility of ensuring that a fair and unbiased outcome is reached. A mediator may be faced with broader responsibilities in cases that involve both public and private concerns. For example, in environmental wrangles, it is recommended that the dispute resolvers are accountable to the general members of the public as well as the future users of the environmental resources.

Public Accountability

In given cases, the participants in a dispute may wish to divert from legal confinements. The ADR offers a flexible alternative which may be an advantage to the participants in a dispute. If given parties were to feel that the ADR process is unfair, they can still take the matter to a court of law. The ADR process should not discriminate against marginalized parties or minority groups.

The ADR has in the past been criticized for not being open to public scrutiny because only the parties in dispute are involved hence increasing chances of unfair rulings against given parties. Social and legal experts recommend that the ADR process should incorporate community, legal and religious leaders as stakeholders to ensure that justice is upheld even when the parties are in agreement.

The agreement must be made within the legal confines outlined in the law. Litigation has some advantages when it comes to issues that may involve the public because divergent opinions given by the members of the public may present fair verdicts. The ADR process should be done in an open forum that can at least be accessed by certain relevant people as discussed.

Disputes that show the existence of a problem within the ADR system may be hidden from public attention and this may cause harm to other parties in a similar scenario in future. Equally, the litigation process also faces similar challenges. Even when the court cases are settled, the terms of engagement may be kept private in most cases.

One solution that the ADR may seek is to decline to deal with disputes that may involve matters of public concern but this fact may greatly disadvantage those who may want to seek means of justice away from the courts. Another solution may involve creating ways in which the ADR processes are made more efficient.

This aspect can be realized by setting up agencies that can analyze the various reports of the cases that are handled and resolved by the ADR and comparing the outcomes with other similar cases handled by the courts. Moreover, more research should be conducted aimed at monitoring the success rates, the cost, results and the level of satisfaction of the participants.

Privacy in ADR processes does not necessarily mean secrecy or lack of accountability (Francis Reagan, 1997, p.15)12. ADR agencies should create information concerning the nature of their work and the amount of challenges that are associated with their duties.

A dispute registration system should be created similar to that used in courts to allow case studies and research to be carried out especially on the complex cases handled by the ADR. This fact would provide a sense of confidence among the members of the public in the ADR.

In addition to that, a central body that deals with issues involving public matters should be established where all the cases that involve the ADR can be filed and addressed comprehensively every year by the highest legal institution.

Power imbalance

The mediators as well as the ADR practitioners are highly concerned about power. This fact has been exposed by the fact that in most of the ADR processes, there are usually no independent or neutral third parties involved in the decision making. If the two parties are to come to an agreement, then it requires that both the participants involved must negotiate with each other in order for them to create a fair and acceptable outcome.

All parties involved should be willing to negotiate with a certain level of compromise and equality of power. Certain parties may have a greater influence when it comes to negotiating for their requests and interests. In this situation, one party may have greater dominance over the other and the outcome may greatly favor one party. Issues relating to power imbalances should be adequately addressed.

To what extent does the factor of power imbalance influence the outcome of decisions at the level of the ADR? What meaning is ascribed to power in the context of the ADR process? Power cannot be quantified. One of the sources of power in negotiation is one’s identity and status in the society. The society awards different individuals as well as groups varying degrees of value.

For instance, a celebrity is perceived to have more value in a society as compared to a teacher in a local school. Power can be gained through many ways and this may change with time as we gain more knowledge and skills. Although certain groups are perceived to more powerful than others, this aspect should not be used against the less powerful people in the society. Disputes should be inspired by integrity in the arbitration of justice.

Equality in the ADR

Formal equality

Equality is a critical aspect in matters of justice. Formal equality is one of the approaches used in addressing equality. When all parties in a dispute are treated equally, the outcome may not only be fair but also just. However, unequal parties should also not be treated equally as the outcome may not be fair. If unequal parties are treated equally in a mediation case, power imbalance is likely to be experienced.

In addition to that, differences between participants in terms of personal style may have a negative or positive influence on a mediation process.

For instance, if one of the parties in a mediation process is well educated and articulate in speech, a manager of a large business corporation, wealthy and the other is a small business owner with minimal education and no access to resources, the mediator may be compelled to rule in favor of the rich individual (Turban and Volonino, 12).

Substantive equality

It is also referred to as the equality of outcome. It requires that all unequal parties be treated as so while all those who are less privileged, the oppressed, as well as those who are relatively powerless be given the necessary requirements so that they can as well participate in the ADR process as equals.

In order for real equality to be achieved for the less privileged and powerful, the oppressed must be recognized and the required effort taken to empower them so that they can participate in just judicial processes in the society( Kubrin, Stucky and Krohn,14).

Substantive equity may give rise to complaints by the powerful and privileged protesting the fact that the other parties including the less privileged are being empowered and thus promoting unequal treatment (National Alternative Dispute Resolution Advisory Council, 1997, p.31)13.

In liberal democracies, equality refers to the act of treating each party “equally”. As the Chief Justice Brennan once stated, “formal equality is a means by which oppression destroys human dignity”. The law does not put into considerations the presence of inequalities in any field of public life (Gerhardy and Brown, 1985, p.92-123)14.

The most important legal improvement made in the past 25 years is the fact that the acceptance of formal equality cannot be deemed to be “true equality” according to Justice Gaudron (The Judicial Review, 1993, p.81)15

Challenges faced by the ADR

Each and every innovation and invention comes with its challenges. As the ADR process is continually being put into practice, challenges emerge hampering effective application of the process (Siegel, 23).

One of the challenges that is experienced by the alternative dispute resolution involves the fact that lawyers are not included in the resolution of disputes thus making the ADR process seem like a channel that does not conform to legal procedures.

Certain factors pose a challenge to the ADR process like lack of the required know how of one’s rights and procedural issues especially in situations where the participants do not seek legal advice.

The ADR process has continued to gain popularity across the globe. Certain societies do not recognize it as a means by which disputes can be resolved. Concern has also been raised about the degree of excellence that the ADR process offers, its competence, transparency and the degree of confidentiality offered by the process.

These reasons have also hindered the further development of the ADR process (Bernard, Snipes and Gerould, 23).

Conclusion

The ADR process provides a win-win circumstance to the parties in a dispute as opposed to the litigation system that is lucrative and leans towards benefitting one party. The law should provide a channel where the desires of the society are fulfilled, an opinion shared by Roscoe Pound. ADR is certainly a creation of the law and does not at any point show that the societies have no faith in the formal courts (Hopkins, 12).

The judiciary system should embrace the ADR system because it has provided a suitable method in which disputes can be resolved in appropriate contexts. The ADR not only offers access to justice but also improves the substance of justice.

Works Cited

Bernard, Thomas, Snipes Jeffrey and Gerould Alex. Vold’s Theoretical Criminology (6th ed.), Oxford, UK: Oxford University Press, 2010.Print.

Hopkins, Burke. An Introduction to Criminological Theory (3rd ed), Gloucester, UK: Willan Publishing, 2009.Print.

Ilana, Kass, and Bard, O’Neill. The Deadly Embrace, London, USA: University Press of America, 2006. Print.

Ivancevich, John, and Matteson, Michael. Organization Behaviour and Management of communication 3rd (Ed), Tetons, USA: Irwin, 2003.Print.

Kubrin, Charis, Stucky Thomas and Krohn Marvin. Researching Theories of Crime and Deviance, Oxford, UK: Oxford University Press, 2009.Print.

Siegel, Larry. Introduction to criminal justice.12th Ed, Wadsworth, USA: Cengage Learning, 2009.Print.

Turban, Efraim, and Volonino, Linda. Information technology for management (8th Ed.), Hoboken, USA: John Wiley & Sons, 2011.Print.

Footnotes

1Dato’ Syed Ahmad Idid, Alternative Dispute Resolution (Adr) An Alternative Access To Justice, Malaysia, 2004

2 Refer to 1

3Barret A ,History of Alternative Dispute Resolution (Jossey-Bass San Francisco 2004) at 7.

4Miller &Sarat, ―Grievances Claims and Disputes: Assessing the Adversary Culture‖ (1980-1981) 15 Law & Society Review 525 at 527.

5Refer to 2

6 Refer to 2

7Lola Akin Ojelabi, Community legal centers’ views on ADR as a means of improving access to justice – Part ILa Trobe University, 2011, Print

8 Refer to 1

9National Alternative Dispute Resolution Advisory Council, ISSUES OF FAIRNESS AND JUSTICE IN ALTERNATIVE DISPUTE RESOLUTION, Australia, 1997, Print

10Christopher W Moore, The Mediation Process – Practical Strategies for Resolving Conflict, Jossey – Bass Publishers, 1991, page 37.

11Judith L Maute,Mediator Accountability: Responding to Fairness Concerns’, (1990) 2 Journal of Dispute Resolution, quoting from Patton, ‘A Brief Outline of the Mediation Process’, (Jan 14, 1982), (unpublished paper held by the author), page 347.

12Francis Reagan, ‘Dilemmas of Dispute Resolution Policy’, (1997) vol 8(1) Australian Dispute Resolution Journal, page 5 at page 15.

13 Refer to 10

14Gerhardy and Brown, (1985) EOC 92-123.

15The Judicial Review, ‘Equality Before the Law with Particular Reference to Aborigines’, (1993)

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