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Alternative Dispute Resolution Essay Sample

Alternative Dispute Resolution Pages
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Alternative Dispute Resolution (ADR) also known as additional dispute resolution, is a name given to the various methods employed to resolve disputes that do not involve a courtroom trial. Individuals and organizations recognize the financial cost and divisiveness of courtroom trials and hence resort to alternative dispute resolution as a means of solving disputes. Many times, lawyers discourage their clients from going to trial and instead advise them to try ADR. A state like Colorado requires lawyers to discuss alternative methods of dispute resolution with their clients (MacKie, 1991). Some of the procedures followed in ADR include: negotiation, neutral fact-finding, early neutral evaluation, mediation, arbitration, summary jury trial, and mini-trial. Neutral fact finding is a process of evaluation that involves the use of a neutral expert in the applicable field who makes findings of fact. The expert’s report forms the basis of a negotiation, mediation or some form of dispute resolution (Atlas, Huber, & Trachte-Huber, 2000).

In early neutral evaluation, the disputing parties make presentations to a neutral party who renders a non-binding opinion. Mediation is a non-binding facilitated negotiation process. Due to its high success rate, mediation is fast becoming the ADR method of choice. In mediation, the parties are the ones that come up with the resolution. Arbitration is a process that involves a hearing presided by a one or three-arbitrator panel. Evidence is presented to the panel at a formal hearing and a decision is made based on that evidence. The American Arbitration Association is one of the sources of arbitration rules. Mini-trial is an alternative dispute resolution (ADR) procedure that is used to resolve legal matters without incurring the expense and delay associated with court litigation (Karen Grover Duffy, 1991).

Caseflow management is the harmonization of court procedures and resources so that court cases progress promptly from filing to disposition. Confirmed practices in caseflow management include case-disposition time principles, early involvement of the court and continuous court control of case progress, use of differentiated case management, meaningful pretrial events and timetables, limiting of extensions, use of data systems to monitor age and status of cases, and aggressive ADR programs. Caseflow management is important as delay of cases often leads to injustice, and prompt resolution of cases ensures optimum use of resources. Resources are wasted when a case takes long to be determined as a lot of the party’s money is used up in paying court and legal fees, and paying witnesses and legal experts. The taxpayer is also burdened with court costs and legal aid. Alternative dispute resolution offers several benefits in caseflow management. First of all, ADR ensures that cases are resolved as fast as possible. Court room trials can take many months to be determined due to many adjournments.

The main reasons for adjournments are taking of evidence, absenteeism of involved party in spite of being summoned, negotiations among parties, and an absent or ill judge. With ADR minimal costs are incurred in the process of resolving the case as no court fees are paid, and many times, the parties may even come up with solution with the help of only a lawyer. Also, the fact that the case is resolved promptly saves on costs as lawyers’ fees are reduced.When ADR is employed, neutral experts are able to assist in the case and this ensures that any resolutions made are based on the sound advice of an expert in the field. Hence, both parties are confident in the final conclusion of the case and no party is left feeling aggrieved.Alternative Dispute Resolution also ensures that the privacy of the matter remains intact. ADR avoids lengthy and publicized courtroom trials which can dent the public image of the parties involved. Alternative dispute resolution is becoming popular in divorce cases. Mediation has been viewed by many as a more appropriate process in divorce cases than the confrontational process that is a courtroom trial.

Advocates of divorce mediation assert that the antagonist system involves devastatingexpenditure and exasperatingadjournments. It does not address the emotional needs of the parties involved in the dispute. Adversarial methods more often than not, aggravate rather than resolve differences for the parties. Aharmonious settlement, on the other hand, typically is in the best interests of both factions, especially where there are children involved (Eavenson, 1998). This ensures that the psychological effects of divorce on children are not aggravated by a long a public courtroom trial. The use of ADR in divorce case resolution is especially important where a speedy resolution to the case is of great importance. In New York’s Nassau County, mandatory mediation is required in divorce cases. After an initial meeting, the allocated judge resolves whether the case is appropriate for mediation and other methods of ADR. However, it is viewed that mediation may not be the best option where one party has substantial power advantage over the other. The hopes, wants or sentiments of either of the parties or the children may impede a reasonable exchange of ideas.

Prompt reasonable compromise may also be incompatible with the objectives or style of one of the contesting lawyers. Some factors, such as the judge, or previous rulings may have impeded case settlement and these need to be surmounted. Lastly, the friends or family of the parties, based on their own need for retribution or their understanding of the law, may provoke the parties toward disagreement. In Nassau County, New York, the use of ADR is being mandated because the judicial system cannot handle the case load which is approximately 1200 cases per annum (Cahn, 2011). However, this is regrettable because, ADR should not be used as a last resort but rather as a default because of the tremendous benefits it offers. In the state of New York, there are several ADR processes required in caseflow management. In adjudicatory processes the decision maker is selected by the community and rules according to community legal ideals. There are formal rules of procedure and evidence. The judge’s decision can be appealed.

In arbitration, the arbitrator is typically selected based upon the arbitrator’s practical expertise. The arbitration is held according to technical and evidentiary rules the parties decide upon. Arbitration decisions typically cannot be contested, except in situations of unwarranted influence, bias, pressure, etc. In consensual processes, an ombudsman examines problems, seeks to avert conflict and helps to resolve disagreements. The fact-finder may make outcomes public, with the parties’ approval, to increase pressure for reimbursement. Alternatively, the fact-finders’ recommendations may, by the parties’ agreement, be private and non-admissible in any consequent contested hearing.

There are also mixed processes which include mediation-recommendation and mediation-arbitration. Mediation-recommendation begins as mediation, but, if the parties do not come to a consensus, the mediator makes a recommendation to the court or other decision maker as to a recommended determination. Mediation-arbitration begins with mediation. If the parties fail to come to settlement, the process transmutes into an arbitration with the former mediator taking up the role of decision-maker. The process may be altered so that parties may elect out of the process at the close of the mediation part, or the parties may select another arbitrator for their disagreement.

References

Cahn, N. (2011, February 20). Nassau County May Require a Mandatory Mediation Session in Divorce Cases. Retrieved from DIVORCE: NEW YORK: http://www.divorceny.com/settlement/nassau-county-may-require-a-mandatory-mediation-session-in-divorce-cases/ Eavenson, P. A. (1998). Mandatory Divorce Mediation: The Impact on the Courts. C.E.D.P. Karen Grover Duffy, J. W. (1991). Community Mediation: A Handbook for Practitioners & Researchers. New York: Guilford Press. MacKie, B. K. (1991). A Handbook of Dispute Resolution: Adr in Action. London: Routlege.

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