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Alternative Dispute Resolution: Types and Functions Thesis

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Updated: Jul 9th, 2022

Introduction

The presence of law reflects human civilization. Initially, it was survival of the fittest where strength determined the outcome of a dispute. However, evolution in society brings about changes that also affect ruling principles while archaic laws are supplanted by progressive social law. Thus, the settlement of disputes becomes a critical issue in society. Progresses demand that society should become more rational and embrace a sense of fairness (McManus & Silverstein, 2011). Reasons and values rather than power become the norm. These changes give opportunities to various methods of alternative dispute resolution. Thus, the emergence of alternative dispute resolution reflects evolutionary developments in society.

The alternative dispute resolution (ADR) is a term that is being used to capture a wide range of dispute resolution systems that are alternative to, or short of the normal court processes, or simply minitrials. Thus, alternative dispute resolution could be described as out-of-court settlement through mutual consent of the parties involved. In this context, alternative dispute resolution can reflect all forms of assisted settlement negotiations that involve engaging disputants in direct negotiations among themselves before any other legal process can be considered. It is a form of arbitration with certain characteristics observed in courtrooms. ADR is a form of intervention developed to assist communities to manage their conflict or tension. From a general perspective, ADR reflects various forms of negotiation, conciliation, mediation, or arbitration mechanisms.

Negotiation mechanisms provide opportunities to encourage and assist direct engagement of parties to a dispute, without involvement of other third parties. On the other hand, conciliation and mediation mechanisms are also like negotiation, but they bring a third party to either mediate or reconcile disputes on specific issues of the matter. The roles of conciliators and mediators could vary significantly but could be as simple as facilitating communication, or take a direct role such as structuring of a settlement. Mediators and conciliators lack any authority to rule on a settlement or decide on the settlement. Arbitration mechanisms allow a third party, the arbitrator, to make decisions on settlement of disputes.

The US, used in this thesis for illustration, is known for its robust and propensity for resolving conflicts and lawsuits but often resort to alternative dispute resolution outside the formal court system using alternatives of arbitration and mediation. Increased use of alternative dispute resolution in the US and other parts of the globe can dramatically improve the pace and quality of social justice delivered. It is imperative to recognize that applications of alternative dispute resolution differ widely across the US. McManus and Silverstein (2011), for instance, noted that nearly 11% of civil cases in Northern California were resolved through mediation, New York only settled 2% of the cases using the same mechanism while the number is even low in Europe (0.5 percent).

A Brief History

McManus and Silverstein (2011) traced the origin of ADR to the common law tradition found in the English law system. In fact, they show that as early as the Norman Conquest, the use of ADR was already adopted to handle certain private wrongs. While this background is necessary, the essay will focus on a more robust use of ADR in the US.

It is observed that the US actively adopted the use of alternative dispute resolution in 1960s during the heightened periods of civil rights movements (Marcum & Campbell, 2009). ADR was considered as a potential solution to increasing court backlogs, as well as an appropriate technique for disputes related to natural resources and the environment. In the year 1985, an order originated from the Attorney General’s office indicating the relevance of ADR in reducing time and cost of civil litigation. It did not take long before the Department of Justice also expressed its support for ADR through the Congressional statement. As a result, the Congress enacted the first ADR law in the year 1990.

Multiple initiatives prompted by the Congress and the government have facilitated the use of alternative mechanisms to resolve disputes, specifically in workplaces using the Executive Branch (Rasnic, 2004). The period of the 1990s showed significant developments for ADR as the Congress enacted three critical statutes, including the Administrative Dispute Resolution Acts (1990 and 1996) and the Alternative Dispute Resolution Act (1998). These statutes collectively focused on encouraging different agencies to develop policies that facilitate the adoption of alternative dispute resolution across a wide range of decision-making processes. At the same time, they also stated that the federal trial courts had to make ADR choices available to conflicting parties (United States Office of Personnel Management, n.d). The enacted initiatives consisted of “the Civil Rights Act (1991), the National Performance Review; Executive Order 12871, Labor Management Partnerships; and the Equal Employment Opportunity Commission’s regulations” (United States Office of Personnel Management, n.d).

Following these developments, scholars have attributed changes in dispute resolution in workplaces to various mechanisms of resolving conflicts (Colvin, 2012). Colvin (2012) has noted that such practices used at workplaces between disputants go beyond individual issues to account for the broader employment relations.

Types of ADR in the US

Given the flexible arrangements made by disputants, ADR consists of several forms and types in the US. These forms and types range from formal, quasi-court systems to more informal, out-of-court conference room negotiations. Notwithstanding each of the forms, ADR has been able to offer disputants in the US several mechanisms to get out-of-court settlements of disputes. Generally, three main categories of ADR can be found in the US. They include evaluative, facilitative and adjudicative.

Adjudicative ADR

This form of ADR involves a quasi-judicial facilitator referred to as the neutral – the decision-maker and the adjudicator. Disputants prefer this mechanism because of the involvement of an outsider, an impartial third party. The neutral would facilitate negotiation outside the court. The decisions reached could differ, including binding, non-binding or advisory (McManus & Silverstein, 2011). Adjudicative ADR consists of several forms. First, arbitration involves one or three arbitrators. Arbitration is useful in cases where disputants cannot agree on facts of the case or in cases involving money. Second, neutral fact-finding is applicable for cases in which disputants disagree on facts or technical expertise. In such situations, a third party is necessary to conduct analysis and determine underlying issues of the dispute.

Evaluative ADR

Evaluative type of ADR involves the use of lawyers and litigants who give their views on a given dispute and get feedback on strengths and weaknesses of their demands and arguments (McManus & Silverstein, 2011). In most instances, disputants are not yet interested in discussing settlements and, therefore, an evaluation approach offers a basis for every party to determine the bargaining power, reinstate and assert their specific viewpoints and dismiss any unrealistic demands and expectations. Evaluative ADR involves peer evaluation. A neutral attorney hosts attorneys for conflicting parties to present their respective cases. In most cases, the panel of attorneys might provide recommendations to allow parties to develop their arguments, assist parties to identify issues not previously discussed and provide settlement options. While parties may fail to reach an agreement, the recommendations reached will be used to guide future deliberations. Another form of evaluative ADR is the lay evaluation or summary jury trial. Attorneys from warring parties present their arguments to jurors as opening arguments, a single witness is used to provide a summary of the evidence and then closing arguments are made. Based on this, the ‘jury’ reviews, gives the verdict, and allows the panel adequate time to poll. The proceeding gives the parties a glimpse of how a real jury may resolve such issues. The evaluative ADR also consists of judicial evaluation, which is almost the same as lay evaluation. In this case, however, a retired judge takes the place of a jury. The judge offers feedback to the parties based on the case merits. Finally, evaluative ADR also consists of expert or specialist evaluation. Expert evaluation is often used when issues involved require technical expertise and opinions. For instance, disputes in biomedicine, software design and construction may require specialists for deliberation. In some cases, the conflicting parties may agree prior that specialists’ opinions would be considered definitive and, therefore, used to make a settlement. The proceeding is considered informal to encourage open interaction between the parties and specialists without pressure from an aggressive party.

Facilitative ADR

In this approach, the neutral cannot provide a binding decision or arrive at the merit of the case. Rather, the neutral acts as an advisor to disputants with the aim of facilitating dialogue, discussion and settlement. Facilitative ADR consists of conciliation, mediation and consensus building. Mediation is less adversarial because the mediator focuses on assisting the parties to note major concerns, review the discussion and brainstorm potential choices for settlement. The ultimate goal of the proceeding is to provide a win-win settlement to ensure that the parties get a satisfactory resolution. Conciliation is almost like mediation but is less formal. In some instance, conciliation may involve the use of other means of communication such as phone calls or e-mails rather than face-to-face meetings. In addition, conciliation may also be adopted if conflicting parties have already attained some kind of reconciliation, relationships strengthened and only details are yet to be resolved for settlement. Finally, consensus building normally involves a large number of parties and their representatives who are selected to secure a decision on behalf of the rest. One major characteristic of consensus building is that it is most likely to take longer period. The large number of parties involved could hinder individuals from attending and, therefore, only representatives may attend deliberations.

Why Use Alternative Dispute Resolution

Alternative dispute resolution is associated with some benefits to parties that opt for it. First, parties have opportunities to process their disputes quickly and resolve issues faster before they can cause damages and losses. Second, deliberation processes offer highly creative solutions. Third, alternative dispute resolution has helped federal courts to clear case backlogs and, thus, save costs and time. In most instances, normal court cases take much time to conclude. Fourth, while the settlement proposed could be creative, they are not always imposed on conflicting parties. Finally, alternative dispute resolution is considered voluntary and durable. Even in cases that do not end in settlement, the process provides opportunities for subsequent settlement and issue clarification for all parties, including third parties.

Given the history of alternative dispute resolution in the US, some scholars have argued that conflicting parties, in most instances, have leaned toward informal dispute settlement, including ADR (Menkel-Meadow, 2013). In this regard, ADR is considered as a solution to serious issues facing formal legal system in the US. Thus, it is now highly regarded in the US due to its more formal approaches. In addition, it is also noted that the use of ADR and other private mechanisms of dispute resolution in arbitration, mediation and other similar approaches among conflicting parties who opt for ADR rather than the formal justice system has gained recognition, particularly in commercial issues and private family affairs. These observed trends have made the justice system more private while enhancing access to justice for different parties. In fact, it is noted that out-of-court settlement has become the major characteristic of the modern US justice system (Nosyreva, 2010). Hence, it should be promoted to improve access to justice (Esher, 2009).

Conclusion

ADR has undergone evolution as a means of providing access to justice in the US. Its major aim however has always been consistent – to offer satisfactory settlement to conflicting parties using out-of-court systems. Consequently, the current trend shows that ADR has become an important and preferred means of resolving both commercial and private matters. ADR programs should be promoted to enhance the vision of justice across the US.

References

Colvin, A. J. (2012). American Workplace Dispute Resolution in the Individual Rights Era. International Journal of Human Rights Management, 23(3), 459-475.

Esher, J. A. (2009). alternative Dispute Resolution in U.S. Bankruptcy Practice. University of Massachusetts Law Review, 4(1), 76-89.

Marcum, T. M., & Campbell, E. A. (2009). The Need for Training and Education in Peer Reviewof Employment Disputes. ALSB Journal of Employment and Labor Law, 11(1), 48 – 62.

McManus, M., & Silverstein, B. (2011). Brief History of Alternative Dispute Resolution in the United States. The CADMUS Journal, 1(3), 100-105.

Menkel-Meadow, C. (2013). Regulation of Dispute Resolution in the United States of America: From the Formal to the Informal to the Semi-formal. Oxford, UK: Hart.

Nosyreva, E. (2010). Alternative Dispute Resolution in the United Statesand Russia: A Comparative Evaluation. Annual Survey of International & Comparative Law, 7(1), 7-13.

Rasnic, C. D. (2004). Alternate Dispute Resolution Rather Then Litigation? A Look At Current Irish & American Laws. Judicial Studies Institute Journal, 4(2), 182-198.

United States Office of Personnel Management. (n.d). Alternate Dispute Resolution Handbook. Web.

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