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Resolving Disputes and the Constitution Essay

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Updated: Sep 10th, 2022

Introduction

Making observation in the recent decades, one gets convinced that turnaround time for civil cases has lengthened, thus increasing costs and uncertainty of the litigation process. From these experiences, various alternative methods of settling cases outside the court have been adopted by the concerned parties.

Mediation

In the recent times, ADR methods have gained international recognition and acceptance. The first ADR method was arbitration; however, with time mediation has received preferences as the best alternative and is widely accepted as a process that provides more flexibility and less procedural complexity (Miller, 2006, p.657). Yona Shamir (cited in Miller, 2006) outlines the positive aspects of mediation which include: 1) mediation largely helps in bringing to the forefront the main and contentious issues of the dispute due to the fact that it has the capacity to resolve some or all of the issues; 2) in using mediation method, agreement can be reached on whole or part of the issue that has given rise to the dispute; 3) the method has the potential and ability to focus and address the needs and interests of the parties either in part or in full to the satisfaction of the interest parties; 4) by using the method, the interested parties are presented with the opportunity of reaching an understanding of the true cause of the dispute, while at the same time, the parties are provided with a chance to chart an understanding that is able to incorporate each other’s needs and interests; and 5) by parties resolving to adopt the mediation method, they have an opportunity to make it possible for the preservation of their relationships which, to extent, may be vital to the growth and survival of the business (Miller, 2006, p.657).

Why Litigation has been sacrificed

Litigation has been sacrificed in business due to a number of reasons. First, litigation normally appears to be formal as compared to the ADR options. Such formal proceedings have a tendency to take long time, in addition to being costly; this is sometimes disadvantageous to the parties. ADR methods on the other hand are considered to be fast and less formal. In addition, parties are presented with options of reaching numerous alternatives (Bowen, 2005). Second, the rules used in the ADR methods are less burdensome as compared to the litigation rules. For instance, there are no rules that require the parties to present evidence; it is an agreement by both parties. Moreover, ADR methods offer the parties a chance to select and adopt ways that may ensure the expeditious and just settlement of the case. Lastly, in ADR unlike in litigation, the parties have a chance to select and choose arbitrators they desire; this may involve selecting individuals who are qualified and best suited to handle the case and his or her final decisions may be satisfactory to both parties (Bowen, 2005).

Impact of Amendments on business

Some amendments to the Bill of Rights have had impact on the business. Such amendments include, limits on search and inspections, just compensation (Meiners, Ringleb and Edwards, 2006). But of importance is the 16th Amendment of the constitution which requires the business operators to pay taxes. This has led to big business paying large amount of money in terms of tax which in turn affects their incomes. Amount of income further affects costs and the way the business conducts its activities. With regards to the amendment, it is evident it has affected the business in that, more personnel has been recruited to compute taxes supposed to be paid while more attorneys to defend businesses in cases related to taxes have increased. At the same time, many businesses have ended up devising dubious means of evading tax or other tax related frauds. Despite the shortcomings of the amendments, they have been necessary especially in regulating business activities in an ethical manner and it would have been difficult for business to operate smoothly without such amendments.

Conclusion

In summary, litigation process is seen to be slow, cumbersome and excessively adversarial, while the increasing number of criminal cases has overcrowded the court system. At the same time, the scope of litigation process is narrow and limited, adjudication focus on rights, duties and remedies, and little attention is paid to cost. Therefore, ADR comes in as a creative process that looks at various alternatives encouraging open communication, sharing of information and joint problem solving.

References

Bowen, P. G. (2005). Two Alternatives to Litigation: An Introduction to Arbitration and Mediation. Dispute Resolution Journal. Web.

Miller, J. R. (2006). Alternative Dispute Resolution (ADR): A Public Procurement Best Practice That Has Global Application. International Public Procurement Conference Proceedings. Web.

Meiners, R.E., Ringleb, A.H., & Edwards, F. L. (2006). The legal environment of business. 9th ed. Mason, Ohio: Thomson.

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