Today, more than ever before, a globalized world economy coupled with the convergence of technology has generated a framework through which business interests are conducted with little or no regard to geographical boundaries, distance, or physical presence. Traditional mechanisms of conducting business are still ongoing, implying that stakeholders are spoilt for choice when it comes to selecting the methodology to use. This achievement, however, comes at a price as demonstrated by the ever-rising number of conflicts of interests among individuals, groups, societies and states (Larson, 2010). To arrest the situation, a multiplicity of methods have been proposed and generally viewed to be effective in initiating ways through which the parties involved in a dispute can be reconciled. This paper purposes to critically evaluate the pros and cons of one such method – alternative dispute resolution.
According to Nabatchi (2007), alternative dispute resolution “…is an umbrella term for a wide variety of conflict management techniques and processes used in lieu of traditional judicial and administrative dispute resolution processes, such as litigation and administrative adjudication” (P. 646). This definition implies that alternative dispute resolution (ADR) does not in any way describe a single approach; rather, it is comprised of diverse practices that could individually or collectively be used to settle disputes among conflicting parties. The role of a professional third party is instrumental in assisting the parties to resolve their dispute.
In terms of benefits, a credible ADR process assists parties involved in a dispute to work through conflicting interests at a modest cost (Larson, 2010). It is a well-known fact that judicial litigation is a costly affair in terms of financial costs, not to mention the fact that judicial proceedings take a lot of time to conclude. Financial costs and time factors may impinge on the business interests of the parties involved, making them lose their competitive advantage in the market. A well-structured ADR process, however, can be concluded in record time, particularly if the parties involved engage the services of a professional third party and other intermediaries who attempt to endeavor to resolve the dispute from an independent, fair, and neutral perspective (Baum, 2010). Furthermore, according to Baum, “…arbitration is a cost-effective alternative to litigation because it does not have litigation’s rigid procedural formalities” (p. 924). Consequently, it can be safely argued that ADR is advantageous over other conflict resolutions methods such as judicial litigation when financial costs, time constraints, and procedural formalities are put into consideration.
A credible ADR process is also beneficial in that it reduces adverse impact upon the relationships of conflicting parties. Unlike in the formal judicial litigation where parties are expected to prove their case under the lens of largely inflexible federal laws, ADR offers a platform where the feuding parties can sit in largely informal round-table panels and work through their problems in an informal and conducive environment (Larson, 2010). More importantly, ADR provides an environment where parties can take positions or compromise in a spirit of give-and-take, therefore ensuring that the relationships of the conflicting parties are not adversely affected. Baum (2010) is of the opinion that ADR is a better process of settling disputes between parties due to its ability to offer relief and craft solutions that are beneficial to both parties. On the contrary, other methods of dispute resolution such as judicial litigation offer unsatisfying resolutions due to not only their ‘winner’ and ‘loser’ orientation, but also due to the fact that they follow regulations and precedents, thus unable to generate equitable and appropriate relief for the parties involved (Baum, 2010).
Another benefit of ADR is that the process provides conflicting parties with the flexibility to choose the intermediary who will ultimately settle their dispute. Unlike in judicial litigation where the conflicting parties must give over their control of the outcome to a judge or jury, the ADR process allows parties to choose a neutral third party who may serve their best interests since such an intermediary takes ample time to evaluate the facts of the case or the context under which the dispute arose (Baum, 2010). In most judicial litigations, the judge may be fully competent in the law but not essentially the particular field under which the dispute arose, not to mention that most judges do not have sufficient time to satisfactorily accustom themselves with the facts of the case under inquiry. In line with this observation, it is evidently clear that most judges in judicial litigation are unable to reach a level of expertise that is usually available when feuding parties appoint their own decision-makers, hence the need for ADR.
ADR, however, has its own limitations. One of the drawbacks is that ADR processes cannot in any way be a substitute for formal judicial proceedings. According to Brown et al (1998), “…ADR programs are instruments for the application of equity, rather than the rule of law, and as such cannot be expected to establish legal precedent or implement changes in legal and social norms” (p. 3). In addition, ADR fails to provide effective resolution of disputes in situations where cultural norms suggest a preference for formal, deterministic solutions, or where cultural values are discriminatory or biased to an extent that they would only be perpetuated in the ADR process. Still, the ADR process is largely ineffective in cases where one of the parties is disadvantaged and needs to institute rights in order to curtail power imbalances, or where one of the parties involved have the power to control the implementation of the decisions reached. As such, it can be argued that ADR processes are unable to correct systematic injustice, discrimination, or violations of rights among the parties involved. It is also disadvantageous to use the ADR process when the dispute cannot be effectively resolved until some structural changes are implemented. Lastly, it is inappropriate to use ADR process to determine multi-party disputes in which some of the parties do not participate, principally because most of the outcomes achieved by the ADR process are not subject to standards of fairness or legal precedent other than the acceptance of all the parties involved (Brown et al., 1998).
Reference List
Baum, C. (2010). The benefits of alternative dispute resolution in common interest development disputes. St. John’s Law Review, 84(3), 907-948. Web.
Brown, S., Cervenak, C., & Fairman, D. (1998). Alternative dispute resolution practitioners’ guide. Center for Democracy and Governance. Web.
Larson, J.S. (2010). Alternative dispute resolution in patent law: Considering the non-practicing entity and increased availability of declaratory judgment. Intellectual Property & Technology Law Journal, 22(12), 15-20. Web.
Nabatchi, T. (2007). The institutionalization of alternative dispute resolution in the federal government. Public Administration Review, 67(4), 646-661. Web.