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ALTERNATIVE DISPUTE RESOLUTION (ADR); BEYOND LITIGATION

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Abstract

This study explains the various alternatives to resolving disputes outside the courtroom. As court queues, rising costs of litigation and time delays continue to plague litigants, it has become expedient to look beyond litigation and adopt some other measures of resolving disputes among warring parties. There are three major forms of alternative dispute resolution processes which are Arbitration, Mediation and Negotiation. All these forms of alternative dispute resolution are voluntary and open for different categories of disputers who prefer to resolve their differences and come to a settlement and mutual agreement between the parties involved. This study also helps to define the peculiarities between the various Alternative Dispute Resolution methods with a clear analysis as to why it is preferable to litigation.
Alternative dispute resolution (ADR); beyond litigation, Lawrit Student
Journal of Law, Volume 1, Issue 1: Pp 48-74 Nov. 2020
1
ALTERNATIVE DISPUTE RESOLUTION (ADR); BEYOND
LITIGATION.
Oloye Joel Ayorinde1, Ajose John Olaoluwa1, Isiaka Victoria
Ohunene1
1Faculty of Law, Ekiti State University.
Corresponding author’s Email: joel.femiloye@gmail.com
Abstract:
This study explains the various alternatives to resolving disputes outside
the court room. As court queues, rising costs of litigation and time delays
continue to plague litigants, it has become expedient to look beyond
litigation and adopt some other measures of resolving disputes among
warring parties. There are three major forms of alternative dispute
resolution processes which are Arbitration, Mediation and Negotiation.
All these forms of alternative dispute resolution are voluntary and open
for different categories of disputers who prefer to resolve their differences
and come to a settlement and mutual agreement between the parties
involved. This study also helps to define the peculiarities between the
various Alternative Dispute Resolution methods with a clear analysis
as to why it is preferable than litigation.
Keywords: Alternatives, Arbitration, Litigation, Mediation,
Negotiation, Resolution.
1. INTRODUCTION:
In general definitions, dispute is referred to as a disagreement,
argument or conflict between parties. Dispute resolution on the
other hand is an indispensable process for making the society
peaceful. Dispute resolution process tries to resolve conflicts
which enables parties to maintain co-operation. Alternative
dispute resolution (ADR) refers to any means of settling disputes
outside of the court room. As problems associated with the
normal litigation are becoming numerous - delay in court
proceedings, time and effort wastage, high cost of litigation,
Alternative dispute resolution (ADR); beyond litigation, Lawrit Student
Journal of Law, Volume 1, Issue 1: Pp 48-74 Nov. 2020
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stringent technicalities and many other issues, it is of high
importance to adopt many other alternatives to resolving
disputes.
Dispute resolution is an indispensable process for making social
life peaceful. Dispute resolution process tries to resolve and check
conflicts, and also enables persons and group to maintain co-
operation. It can thus be alleged that it is the sine qua non of
social life and security of social order, without which it may be
difficult for the individuals to carry on the life together.
1
ADR is beneficial for resolving any critical dispute. However, the
results vary from situation to situation, depending on the matter
at hand. ADR possesses some key benefits which include:
(a) Cost saving: unlike litigation, ADR carries a lower cost. This
is due to the fact that judicial processes which involves the
payment of court fees, appearance fees, documentation fees and
the likes are not included in ADR.
(b) Saves Time: In resolving conflicts via ADR, parties involved
decide when it is more convenient for them to meet in order to
resolve their disputes. However, adjudicative processes for
resolving conflicts are quite lengthy since the hearing is
dependent on court decisions. Litigation takes years to resolve
due to incoherent dates and time. Matters deliberated using the
ADR method may take few months or even just weeks to be
resolved.
(c) Control: The parties have control over some of the processes
in ADR. Decisions such as choosing the preferred method of
ADR, selecting the panel for the dispute resolution, the length of
the process, and, in mediation cases, even the outcome is
controlled and maintained by the parties. In a lawsuit process,
the control is totally possessed by the court and supreme
authority.
1
R. E. Park and E. W. Burgess, Introduction to the Science of Sociology,
(The University of Chicago Press 1921)
Alternative dispute resolution (ADR); beyond litigation, Lawrit Student
Journal of Law, Volume 1, Issue 1: Pp 48-74 Nov. 2020
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(d) Confidentiality: Privacy is fully secured when it comes to
Alternative Dispute Resolution. ADR is conducted in private,
therefore avoiding publicity from the media. The public are also
unable to attend.
(e) Experienced Neutral Panelists: The Panelists are
professional mediators and arbitrators with training and
expertise in dispute resolution. Disputing parties are able to
select their panellist from a list of qualified individuals who are
specialized in specific aspects and areas as it concerns the matter
for dispute.
(f) Cooperative Approach: All ADR services take place in a
more informal, less confrontational atmosphere. This enables the
parties involved to continue in a good and undistorted
relationship at the end of the process.
2.0 ALTERNATIVE DISPUTE RESOLUTON METHODS
2.1 Definition and Scope of Arbitration
Arbitration is one of the oldest methods for the resolution of
disputes between the parties. It has existed in one form or the
other, in every country at all times. Arbitration as a process of
dispute resolution offers many advantages to both the parties.
2
Arbitration is one of the various methods of dispute resolution
but undoubtedly the most popular. It is defined in the Halsbury’s
Laws of England as “the reference of a dispute or difference
between not less than two parties for determination, after hearing
both sides in a judicial manner, by a person or persons other than
a court of competent jurisdiction”
3
2 V. Agarwal (2001). “Alternative Dispute Resolution Methods” Paper written
following a UNITAR Sub-Regional Workshop on Arbitration and Dispute
Resolution published in Geneva, March 2001.
3 Halsbury’ s Laws of England, 3rd Edition, Volume 2 at pg.2 para 2.
Alternative dispute resolution (ADR); beyond litigation, Lawrit Student
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Similarly, Bernstein in his book on Arbitration practice said
“where two or more persons agree that a dispute or potential
dispute between them shall be decided in a legally binding way
by one or more impartial persons in a judicial manner upon
evidence put before him or them, if it’s a panel. the agreement is
called an arbitration agreement or a submission to arbitration.
Arbitration also involves a neutral third party (the arbitrator)
who is responsible for running the process and making the
decisions necessary to resolve the dispute. Unlike litigation
where a judge (a public official) is appointed by the court to sit
on a case, the arbitrator is typically a private person chosen by the
parties. Such person is usually a specialized expertise on the
matter for dispute. A dispute that might otherwise go to court
becomes subject to binding arbitration only by the agreement of
the parties. In this sense, arbitration is a creature of contract,
and the terms of the parties particular arbitration agreement are
generally controlling.
An agreement to arbitrate can also be made after a dispute
arises, as the result of a negotiation between parties already in
conflict. Binding arbitration in lieu of judicial adjudication is
voluntary in the sense that it is only by agreement that one is
required to arbitrate; but once there is an agreement it is
involuntary in the sense that courts will enforce it against a
reluctant party by refusing to adjudicate disputes which are
within the scope of the arbitration agreement.
2.2 Benefits of Arbitration
In an arbitral proceeding, the procedural rules may be set by the
parties in their arbitration agreement. Pre-trial discovery is
typically limited or eliminated and each party is given an
opportunity to present proofs and arguments at a hearing where
the procedures are typically much less formal than those found
in court. Depending upon the parties agreement, the arbitrator
may or may not be asked to render a principled decision
supported by a reasoned opinion. Often the arbitrator is free
Alternative dispute resolution (ADR); beyond litigation, Lawrit Student
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simply to announce the award without any explanation. In
final-offer arbitration, by agreement of the parties the
arbitrator is required to resolve the dispute by choosing one or
the other of the final-offers submitted by the disputants the
arbitrator lacks all power to impose any other result (Farber
1980)
4
. (This is sometimes called baseball arbitration in the
United States because it is used to resolve salary disputes in major
league baseball.)
1.0 Definition and Scope of Mediation
Mediation, as one of the most important and also most common
form of Alternative Dispute Resolution, is a procedure in which
the parties discuss their disputes with the assistance of a trained
impartial third person(s) who assists them in reaching a
settlement.
5
Mediate is from the Latin word "mediere", meaning
to be in the middle.
Generally, it is like a negotiation, presided over by a third party.
Regarding this definition, we can conclude that mediation occurs
every day in human's life. For example, a mother trying to settle
a dispute or quarrel for her children or a manager settling a
dispute between two members of staff are said to be mediating.
According to the Black's Law dictionary, mediation is the act of
a third person, interfering between two contending parties with
a view to reconcile them or persuade them to adjust or settle their
disputes.
6
According to the Madison Law, mediation is a form of ADR
where a neutral third-party assist disputing parties in resolving
4
Farber, H. S. “An Analysis of Final-Offer Arbitration.” [1980] Journal of
Conflict Resolution; 24 page 683-705.
5
What is Mediation and how does it work?
<https://corporate.findlaw.com/litigation-disputes/what-is-mediation-and-
how-does-it-work> accessed on 6 November 2020.
6
Black, H. Campbell: Black's Law dictionary, West Publishing Co. St. Paul,
Minnesota, USA 1990.
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conflict through the use of specialized communication and
negotiation techniques.
7
It is also important to note that a mediator cannot impose his
decision/s on the parties involved. He only stands as a facilitator
in the mediation process.
The most common disputes that lead to mediation are the ones
that involve contracts, disputes in commercial transactions,
family law matters, employment disagreements, workers
compensation, divorce, domestic relations or any other matters
which do not involve complex procedural issues like criminal
cases.
8
Mediation can be an informal meeting lasting for some hours or
rather, can be a planned settlement conference that lasts for some
months. It is volitional to the two parties which makes it different
from arbitration where an arbitrator, just like a judge, can make
decision that is binding on the both parties.
3.1 Benefits and Advantages of Mediation
There are many advantages to using mediation as an Alternative
Dispute Resolution (ADR).
1. Mediation is not Cost Effective: One of the biggest
advantages of mediation is that the costs are significantly lower.
The English Courts have a very strong endorsement to mediation
at early stages, mostly in cases where litigation costs more than
the amount in dispute. In Egan v Motor Services (Bath) Ltd,
9
the amount in dispute was only €6,000 but the parties spent
almost €100,000 on the litigation. Ward LJ regarded the parties
7
Megan Smoak and Nichole Hill: Madison Law, Create Space Independent
Publishing Platform, ISBN-10: 1478151897. 2012.
8
Find Law Attorney Writers, What is Mediation and how does it work.
(2016) accessed on 6 November 2020.
<http://Corporation.findlaw.com/litigation-disputes/alternative-dispute-
resolution-which-method-is-best-for-you>
9
Egan v Motor Services (Bath) Ltd, England and Wales Court of Appeal (Civil
Division)1002. 18 Oct, 2007
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as "completely cuckoo" to have engaged in such expensive
litigation with so little at stake. So, litigation and court cost can
be very expensive and the cost of mediating is greatly reduced in
comparison with pursuing the matter through the courts or
arbitration.
2. It is Private and Confidential: Confidentiality in mediation
has such importance that the legal system cannot force a mediator
to testify in court as to the content or progress of mediation.
10
What you say during mediation cannot legally be revealed
outside the mediation process, however with few exemptions.
Whatever said in a mediation meeting is kept between the two
parties and the mediation. The proceedings are concluded in
private and the parties are in control of their own position.
3: Mediation ends amicably: Lawsuits ruin relationships, thus
an advantage of mediation is its ability to resolve disputes
without ruining the relationship. Mediation allows the two
parties to resolve their disputes in a friendly manner. It gives the
two parties a way to solve disputes in ways agreeable to both
sides.
11
And obligations under agreement are more likely to be
fulfilled than obligations imposed by a court.
4: Time Saving: While an average case going through proper
legal procedure can last for years, a case handled through
mediation lasts for less than three months. Moreover, meeting
sessions can be easily fixed at any time that suits the either parties
and can take place in variety of locations. It is also very helpful in
family cases where prolonged law disputes can cause
psychological and emotional imbalance for the children
involved. Studies have shown that trials that take months to
10
Megan Smoak and Nichole Hill: Five benefits of mediation, Madison Law,
Create Space Independent Publishing Platform, ISBN-10: 1478151897. 2012.
11
David Jones: The advantages and disadvantages of mediation (2019)
accessed on 6 November 2020 <.https://www.glaisyers.com/adantages-and-
disadvantages-of-mediation>
Alternative dispute resolution (ADR); beyond litigation, Lawrit Student
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prepare have detrimental effect and cause tension for the
children.
12
5: Compliance: Studies show that people who reach an
agreement mutually will not look for ways to violate the
agreement. As such, agreements reached through mediation are
more likely to be carried out than those imposed by a judge
because both parties mutually agreed to them.
3.2 Disadvantages of Mediation
There are disadvantages of mediation that lead people to use
other options such as litigation, arbitration, conciliation and so
on, to solve their problems.
1: Either Party may Withdraw: One of the disadvantages of
mediation is that either of the parties can withdraw at any time
while mediating. Moreover, either party can choose to go with the
agreement or not. In litigation, for example, the only party that
can withdraw is the plaintiff, if they drop lawsuit. But in
mediation, even the party that is at fault can withdraw if they are
not happy with what might be the probable outcome of the
meeting.
13
2: The Mediator is a Third Party: The mediator is an outside
party. The mediator has no previous knowledge of what the case
is and has never met the parties before. This can be like a problem
in mediating an issue. In contrast, a lawyer that is called to defend
a client in a criminal case knows much about what a criminal case
is before getting into the court. Furthermore, the mediator
cannot decide for the parties he or she is trying to mediate for. He
just brings up pieces of advice on what the two parties can agree
on.
12
Law reform commission-alternative dispute resolution: Mediation and
conciliation. Dublin, Ireland (2010)
13
Mediation Disadvantages (accessed on 6 November, 2020)
<https://www.lawfirms.com/resources/lawsuits-and-
disputes/mediation/mediation-disadvantages>
Alternative dispute resolution (ADR); beyond litigation, Lawrit Student
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3: There are no Guarantees: In mediation, negotiations fall
through. There is no assurance that the issue will be settled if a
side is adamant and refuses to listen to what is being mediated,
the matter will end up in court and even regardless of the cost
spent on mediating, the cost of going to court will be added if
negotiations fall through.
14
4.0 Negotiation
Negotiation is one of the most commonly used means of Dispute
Resolution.
Negotiation can be defined as a strategic discussion that resolves
an issue in a way that both parties find acceptable. In a
Negotiation, each party involved tries to persuade the other with
his/her point of view. By negotiating, all involved parties try to
avoid arguing but agree to reach some form of compromise.
We participate in negotiations every day. We negotiate disputes
and responsibilities. Negotiation is a bargaining process
between parties when both try to arrive at an understanding
agreement that settles matter of common concern or resolves
conflict. Though conducting a negotiation has some objective
principles that can guide its success, it is an art. Steve Gates, CEO
of The Gap Partnership, an international workshop provider and
organizer, wrote “…there is no right or wrong way to negotiate
an agreement, there is an appropriate way.”
15
In negotiation technique, the serious bargaining negotiator
accomplishes his goal by endeavoring to persuade his opponent
that their case is not strong and that they should seek a solution
as fast as could reasonably be expected. Instead of approaching a
negotiation like an exercise in joint problem solving so that all
14
David Jones, The advantages and disadvantages of mediation (2019)
accessed on 6 November 2020. <https://www.glaisyers.com/adantages-and-
disadvantages-of-mediation>
15
Steve Gates, The Negotiation Book: Your Definitive Guide to Successful
Negotiating, published by John Wiley & Sons (2011) p.19 accessed on 9
November, 2020.
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parties benefit, the competitive negotiator views negotiations as
a zero-sum game; one party must win and another will have to
lose.
5.0 Conciliation
Cconciliation is the process by which one or more independent
person(s) selected by the parties to an agreement generally by
mutual consent, either at the time of making the agreement or
subsequently when a dispute has risen between them, to bring
about a settlement of their dispute through consensus between
the parties by employing various persuasive and other similar
techniques. The conciliator is supposed to be impartial and
conduct the conciliation proceedings in an impartial manner.
He/she is guided by the principles of objectivity, fairness and
justice, and by the usage of the trade concerned and the
circumstances surrounding the dispute, including any previous
business practices between the parties. The conciliator is not
bound by the rules of procedure and evidence. It is a process of
confidence and faith. Sometimes, and in some systems, it is also
called mediation. There may be technical or legal differences
between the two expressions, namely, conciliation and mediation,
but for the present purpose the expression “conciliation’ is used
to refer to both the processes, namely, the conciliation and
mediation.
6. CONCLUSION
For a negotiation process to start and end well, consistency
matters in ensuring the negotiation are as effective as possible.
Furthermore, if the steps of preparing for a negotiation is
thoroughly followed, there is an assurance of a successful
negotiation. We’ve defined negotiation and examined the
alternatives strategies for conflict resolution. Alternative Dispute
Resolution is indeed an emerging sector in the litigation process.
With the various types and ways of resolving dispute such as
mediation, negotiation, arbitration, as discussed earlier, it is
Alternative dispute resolution (ADR); beyond litigation, Lawrit Student
Journal of Law, Volume 1, Issue 1: Pp 48-74 Nov. 2020
11
absolutely possible to engage in a judicial process without
stepping into the court of law, the litigation process has become
so easy as these steps help to hasten the judicial process, as it is
known that justice delayed is justice denied. The different steps
to Alternative Dispute Resolution help to fasten the judicial
process, reduces the cost of litigation significantly, foster unity
even after the process.
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