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Unit 1 Introduction

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22 views23 pages

Unit 1 Introduction

Uploaded by

Teryel Maiden Bwalya
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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University of Lusaka

ALTERNATIVE DISPUTE RESOLUTION (ADR)


UNIT 1
INTRODUCTION
WELCOME!

Mrs. Theresa Lumbama-Kaputo


[email protected]
UNIT 1

• What is ADR?
• Arbitration a form of ADR
• Litigation v Arbitration
• Ancillary Issues
What is ADR?

 Most definitions of ADR begin with distinguishing it, because it is


alternative. We therefore ask, alternative to what?
 Legally speaking:
 Alternative to adjudication (formalism)
 i.e. as opposed to a court-focused approach to dispute resolution, a
dispute-focused approach is relied on

 Based on that, what then, is the opposite of formalism?


What is ADR? (Cont’d)

 Informalism
 This includes everything that takes place outside the formal court system
e.g. tribunals, arbitration, community justice projects, negotiation, executive
trials, med-arb, mediation, ombudsman,…
 General features of informalism include:
 Empowerment of individuals
 Co-operative problem solving
 Preservation of business and personal relationships
 Direct participation of parties (thus resulting in tailor made out-comes)
 Time and cost saving
What is ADR? (Cont’d)

 Any possible dangers or contradictions of relying on informalism as


opposed to formalism?
 Consider the question from this context i.e.

Civil justice system v Criminal justice system


What is ADR (Cont’d)

 Read the following to find the answer:


 Norman P “Civil Litigation in Practice: Alternative Dispute Resolution”
 Smith R “Achieving Civil Justice Appropriate Dispute Resolution for the
1990’s”
 Zander, Michael “A matter of Justice: The Legal System on Ferment”
 TM Grace “Criminal Alternative Dispute Resolution: Restoring Justice,
Respecting Responsibility, and Renewing Public Norms”
 Abel R “The Contradictions of Informal Justice” in “The Politics of Informal
Justice”
What is ADR (Cont’d)

 Thus far, it has been established that ADR concerns unravelling,


fizzling, sorting, or working out a dispute typically outside the court or
through a settlement outside the court
 Based on that, it could be said that ADR may be defined as, or
denotes all forms of dispute resolution other than litigation or
adjudication through the courts
 Any possible reason why the above definition may fall short of a
definition for ADR?
What is ADR? (Cont’d)

 In arriving at your answer consider the following four major types of ADR:
 Negotiation: parties resolve dispute without help of third party
 Mediation: third party is granted authority to manage the conflict and
facilitate the discussion in order to assist the parties to negotiate an
agreement about the future. Third party has no power to make decisions
 Conciliation: third plays an active role in the conflict resolution process and
thereafter issues a non-binding suggested resolution
 Arbitration: parties submit dispute to third parties to resolve it. The third
party has decision making authority, whether to decide the merits or the
settlement relating to a past event
 Negotiation aside, any common thread running through the other types?
What is ADR? (Cont’d)

 Consider two more minor examples:


 Med-arb: third party will assist the disputing parties to negotiate but
has decision making powers should the parties not agree
 Executive trial: third party gives expert opinion as to who could win
the case should it go to trial, and the parties agree to settle a case
based on this opinion

 The given definition falls short based on the above spectrum of third
party intervention
What is ADR? (Cont’d)

 The relevance of third party intervention is apparent especially when


considering that both consensual processes (e.g. mediation) and
adjudicative processes (i.e adjudication) involve a third party
 Further, outside the core ADR mechanisms, ADR in different contexts
almost always involves a third party (neutral)
 For further understanding read:
 Black and Baumgartner “Towards a Theory of Third Parties”
 Mulcahy and Lloyd-Bostock “Managers as Third Party Dispute Handlers
in Complaints about Hospitals”
 Roberts S “Towards a Minimal Form of Alternative Intervention”
What is ADR? (Cont’d)

 In light of the above, a more fitting definition for ADR could be:
 “[A] range of procedures which serve as alternatives…to
adjudicatory procedures…for the resolution of disputes,
generally but not necessarily involving the intercession and
assistance of a neutral third party who helps to facilitate such
resolution”
‘ADR Principles and
Practice’ Brown and Marriot
Arbitration a form of ADR

 Why is arbitration considered an ADR mechanism despite falling under


the umbrella of adjudicative procedures?
Litigation v Arbitration

 Formal  Less formal


 Lengthy procedures  Shorter procedures
 Costly  Less costly
 Rules of evidence apply  Limited discovery process
 Public record  Often private
 Neutral presiding officer  Discretionary 3rd party intervention
 Possibility of appealing decisions  Possibility of appeal in narrow
circumstances
Possibility of Appeal in
Arbitration

 This is dependent on:


 1) Nature of the arbitration (i.e whether private /judicial)
 1(a) Private - based on the referral of a dispute by parties to a third person
 To whom the appeal goes is dictated by parties (prevalent in employment disputes)
 1(b) Judicial – Mechanisms based on the laws of a particular country
Possibility of Appeal (Cont’d)

 Read up on the following for further understanding:


 Menkel-Meadow “The Transformation of Disputes by Lawyers: What the
Dispute Paradigm Does and Does Not Tell Us”
 Genn H “Paths to Justice: What Do People Think About Going to Court”
 Fiss O “Against Settlement”
 Galanter M “The Radiating Effects of the Courts”
 Galanter Marc “A Settlement Judge, not a Trial Judge”
 Brown H “Alternative Dispute Resolution”
Ancillary Issues

Some of the elements of ADR are:


 Existence of issue in controversy
 Voluntary agreement by both parties to participate in ADR processes
 Voluntary agreement by both parties on the type of ADR to use
 Participation in the process by officials of both parties
Ancillary Issues (Cont’d)

Goals of ADR
 The goals of establishing these processes to resolve disputes as an
alternative to more formal legal processes include:
 to relieve court congestion, as well as prevent undue cost and delay;
 to enhance community involvement in the dispute resolution process;
 to facilitate access to justice;
 to provide more effective dispute resolution; and
 to offer alternative methods of dispute resolution in addition to the
regular court system.
Ancillary Issues (Cont’d)

Characteristics
 Informal;
 Application of equity;
 Direct participation between parties;
 Voluntary: the parties choose to use ADR;
 Non-judicial: decision-making remains with the parties to the dispute
rather than a third-party who has no stake in the outcome.
Ancillary Issues (Cont’d)

 Advantages of ADR
 The perceived advantages of ADR are:
 Cost saving: judicial process for resolving any disputes involves court fees,
documentation fees, advocate’s fees and many other extra costs. Moreover, if there is
corruption present, the cost may rise even higher. ADR does not involve expert fees or
courts costs.
 Speed: litigation can take over a year to resolve because of different timing and dates
involved. Matters that are being solved using the ADR method may take months or even
just weeks to be resolved.
 Control: the parties have control over some of the processes in ADR e.g. selecting the
panelist and length of the process.
 Confidentiality: it is conducted in private, therefore avoiding publicity- the public are
also unable to attend.
Advantages (Cont’d)

 Experienced Neutral Panelists: parties are able to select their


panelist from a list of qualified individuals who are specialized in
specific aspects of their disputes.
 Cooperative Approach: it takes place in a more informal, less
confrontational atmosphere. Therefore it looks into the best interest of
both parties in order to conclude a compromised mutual decision.
 Flexibility: Legal and non-legal disputes can be addressed during this
process proving it to be more flexible.
 It leads to a mutually beneficial solution thus leaving parties in good
terms.
Ancillary Issues (Cont’d)
Disadvantages of ADR
 Some of the disadvantages are:
 Unequal bargaining power: in certain situations one side is able to control the
other therefore power imbalance.
 Lack of legal proficiency: where a dispute involves difficult legal points a
mediator or arbitrator is unlikely to have the same legal expertise and
knowledge as a judge.
 Lack of precedents: it is not easy to predict the outcome of a dispute decided
through ADR as there is no system of precedent.
 Enforceability: most forms of ADR are not legally binding, making any award
difficult to enforce.
 Limits discovery process: ADR generally proceeding without the protections
offered parties in litigation, such as those rules governed through discovery.
Courts generally allow a great deal of latitude in the discovery process, which is
not active in ADR.
End
UNIT 1

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