Tuesday, June 4, 2013

ALTERNATIVE DISPUTE RESOLUTION

Introduction Alternative Dispute Resolution (ADR) refers to the practice where different and non traditional methods are used to help solve misunderstandings and problems between people who are at a conflict before any court proceeding are instituted. A person who is not party to the conflict is engaged so as to solve or reduce the intensity of the conflict. CDR also refers to moderated negotiations between parties to a dispute before any legal action can be taken. Furthermore, ADR may also include any other processes that are used to manage problems that may arise in the community including development issues. The use of ADR has been in existence for a considerable length of time for instance its use began in the United States in the ‘70s. It was then viewed as a way of solving civil disputes that arose in the communities. Mediation between warring parties coupled with a strong movement to address the delays in the dispensation of justice that was being witnessed in the country during that period. Court connected ADRs were authorised in the United States following reforms of the 1990s in the federal courts that called for reduction in justice delays and costs. An increasing use of non court connected ADRs aimed at giving solutions that are more agreeable to the parties in a conflict, support community civic bodies, maintain the social relationship between the parties to conflict and also lessen the dependence on court systems. The Civil Dispute Resolution Act, 2011 has led to a change in role of the lawyers from purely that of litigation and legal advice to client to that of dispute resolution. The essay will focus on the Civil Dispute Resolution Act, 2011 and the changes that it has brought to the legal process. Special focus will be given to the use of ADR, the various types of ADR, disputes that can be solved by ADR and how clients can participate in the ADR processes. Furthermore, an example of a dispute will be given with its nature and cause clearly analysed. The dispute will then be subjected to an ADR process to see its effectiveness in solving the dispute. A basic model of mediation will be described with a complete role of both the mediator and the participants. Then, an assessment of the skills, knowledge and aptitude needed in an ADR process will be given. Finally, an analysis of the application of ADR in areas of law will be discussed. Provisions of the Civil Dispute Resolution Act, 2011 The Act was assented to in April 2011 after it had been enacted by The Parliament of Australia. The Act provides the platform for the resolution of conflicts related to civil disputes. ADR in Australia has its legal basis on the Act as the object of the Act calls for individual to try resolving the dispute by taking legitimate steps before they can institute civil proceeding in courts of law. The genuine steps noted in the act include but not limited to; notification of the other party, response to a notification, provision of documentation to enable the party to the conflict understand the basis of the conflict, selecting a mediator who is acceptable to all the parties and finally the attendance of the proceedings. Styles of ADR There are several styles of ADR which can be used to solve disputes between individuals and sometimes even organisations. The style of ADR used depends on the case, what the parties to the conflict want to achieve and sometimes the opinions of the applicant. The styles include Arbitration, mediation, negotiation, and conciliation Arbitration Refers to a style of ADR where the parties to a conflict concur to present their disputes to a trusted and non partisan third party commonly reffered to as an arbitrator. The two parties then present their arguments and any relevant documentation to the third party. The arbitrator studies the evidences before him in a positive manner and then gives a verdict which in most cases is binding for the parties. In the business fields, an arbitrator can be permanent or selected by the parties to the conflict. It should be noted that during the presentation of the evidences before the third party, the rules of evidence which are used in courts of law are not considered. There are other sub forms of arbitration as an ADR for instance interest arbitration aimed at issuing binding decisions in conflicts involving contracts. Others are final offer selection, tripartite and expedited arbitration. The latter involves the speeding of the arbitration process in an informal session so that costs can be minimised. Mediation This is a process whose aim is to achieve a ground of mutual agreement between the conflicting parties by the help of a non partisan third party. The common agreement results from the various suggestions and proposals that are given by the mediator. No solution comes from the mediator directly but the solution comes after the differing needs of the conflicting parties are noted and a discussion ensues about the ideas and ideals of the two parties. The mediator helps the tow parties understand each other thus allowing them to cede ground in areas where they tend to act in an unrealistic way. This process goes on until a mutual understanding and agreement is reached. It is different form arbitration in that the mediator does not make the decision while the arbitrator makes the decision which is binding. Conciliation Refers to an informal process of ADR where an arbitration process requires no aforementioned agreement between the parties to the conflict. Either of the parties can make a request to the other to appoint a conciliator to help them solve the dispute. Just as in arbitration and mediation, the parties make submissions as to the cause of the dispute to the conciliator who may then meet the two parties involved in the conflict regarding their proposed settlements. The conciliator can also draw up settlement proposal which when accepted and signed by the two parties become binding. In case one party rejects the conciliator appointed there can be no resolution of the dispute. Negotiation It refers to all types of voluntary communication aimed at achieving agreements that are mutually acceptance to parties in a dispute. It is a means through which a person can acquire what they want from another person if the two people have conflicting interests. At the beginning of the dispute, the people can have very varied views but the negotiation process will allow them to coma to a common position. Disputes Suitable for ADR The Australian Justice system tries to solve cases through the use of ADR whenever the method is practicable but not including areas of judicial review. Some cases are unsuitable for the use of ADR since a party involved may wish for a resolution in a point of law where a binding primacy is would be important or when the position of one of the parties needs protection. ADR has increasingly been used to solve dispute related to labour and employee contracts. The Australian Taxation Office (ATO) is a department that has fully embraced the importance of ADR. They have an elaborate process to be followed in case any dispute arising from taxation. ATO considers whether the dispute can be solved by dialogue between the parties and also the benefits of the use of ADR towards the improvement of the relationship between ATO and the taxpayers. The litigator must advise the client on the type of the ADR that will be used in the process so that they can arrange what is necessary for the process. The location where the proceedings will be conducted is also of great importance to the client as neutral grounds often work best. Thirdly, considering the ADR type that is chosen, the client is made to understand clearly what the ADR practitioner will do in the process. The clients are also made to understand that all the proceedings are confidential. The litigation officer will attend on behalf of the client or both of them can be present. The client when present will give the documentation to support their claim followed by ATO. Negotiation are done at a place that all the parties are comfortable with and the client is given time to evaluate and re-evaluate the terms of settlement. , Example of ADR Use and its Effectiveness ADR has been used in South Africa for along time with the turning point being the formation of the Independent Mediation Services of South Africa (IMSSA) in the ‘80s in to solve labour disputes. The disputes may be in terms of the right of the employees for instance failure to adhere to the terms of the contract, including the working hours and the conditions. In addition such issues as non implementation of awards resulting from arbitration, unfair or non implementation of terms agreed and unreasonable labour practices and termination of employment also fall under disputes relating to the employee rights. Secondly, there are disputes of interest in cases where the workers hope to enjoy a certain right which they do not enjoy presently. The settlements of the disputes of rights in most cases fall outside the legal instruments and thus are better solved by the use of ADR tools such as conciliation, arbitration and mediation. ADRs use in to solve labour disputes is effective in a number of ways. To begin with, the process is less expensive and faster in the delivery of outcomes as compared to litigation. The participation of the parties to dispute leads to an increased satisfaction and compliance with the resolution. The ADR process also has a way of maintaining the cordial relationship between the employee and the organisation which they work for as opposed to court proceedings which can create ill will between people. This relationship is important since the parties to the conflict will relate even after the solution of the conflict. Basic Model of Mediation The basic model of mediation involves the voluntary resolution of minor conflict between two disputants. The mediator engages the disputants in such a way as to make them understand the issues that led to the dispute. The disputants are later guided on how they can negotiate effectively and reach a workable settlement that is agreeable and fair to all of them. A basic mediation model was developed in Honolulu based on the native way of solving problems in the Hawaiian societies but with more emphasis on the contemporary issues facing the family. The mediation process according to the model is divided into 2 phases; the Forum and the Negotiation. In the Forum phase, mediator opens the meeting with a few remarks, which include the nature of the process. He/she then allows the disputants to make their statements about their conception of the conflict. The process then moves to a caucus stage where the mediator has session with the disputants’ one at a time. This is where the disputants open up to give more information concerning the conflict. The mediator can then have his assessment of the disputant’s primary views, feelings and interests concerning the conflict. After the development of facts as to the issues that led to the conflict, the next stage is the negotiation phase. This is the phase where the mediator helps the disputants to discuss solutions which are in line with their interests. A series of caucuses are also used to help the disputants cede ground so that the talks cannot collapse. The negotiator will notify the disputants on the negative results should the talks collapse. The participants will be reminded about the relationship status that they enjoyed before the conflict and thus strive to go back to it. These caucuses are carried out until when the mediator is satisfied that the participants are ready to bargain and practical in their demands. The mediator helps in the drawing up of the final agreements after the participants reach a workable solution. Knowledge, Skills and Aptitudes Needed in ADR Processes Knowledge The ADR practitioner must have adequate knowledge in the field of conflict management and resolution to adequately dispense their duty. Without this knowledge, there can not be realised the benefits of the process. Knowledge of the cultural backgrounds of the parties to the conflict is also of great importance to the facilitator or the practitioner as it will inform the approach which will be taken in the process. Since most of the ADR outcomes are a product of negotiations, the practitioner should be better placed with in depth knowledge of how to negotiate successfully. The practitioners also need good communication skills so that the participants can clearly understand whatever is being communicated to them. This helps in that the participants will be able to visualise the problem and act in a rationale way. Another important knowledge area that the facilitator should harm themselves with is the understanding of contexts and procedures. This helps to increase the participants trust in the process thus helping to promote positive outcome for the process. Skills and Aptitudes The first skill is the ability of the practitioner and participants to assess the applicability of ADR in the solution of the dispute that is being experienced. The disputants together with the practitioner should also be able to define the dispute for instance the genesis and the effects it will have on the disputants. The practitioner should also be in a position to gather information successfully from the disputants and subsequently use the information for the benefit of the parties to the conflict. The ADR practitioner should also be in a position to take charge of the process and manage it in an effective way, communicating the ideas of the parties coherently and instituting meetings between the parties to the conflict. The practitioner should be able to exercise impartiality in the course of carrying out their duties. They should also have the skills to help the disputants make a decision which will act as a solution to the dispute. Finally, they should also be able to draw up the agreements that are reached between the disputants. Their skills will allow them to record the agreement in the words of the warring parties so that they can accept the agreement as binding. Use of ADR in Particular Areas of Law ADR has been increasingly applied in parenting plans in Australia for instance clearly indicating the person who will get the custody of the child, the contact hours between the child and the other parent or any other person whom the child may be related to. It also included such issues as who will pay for the child’s support and maintenance and in what ratio will the contribution be made. There has been a noted drop in the number of cases that are being registered parenting plans at the Family Court of Australia according to the statistics that they keep. However, an increased in the number of consent orders has been noted since most lawyers advice their clients to seek other ways of solving the disputes die to the rising costs of registering parenting plans. The long procedure for the registration has also acted as deterrence to the use of parenting plans. The parents realised that ADR helped them to reach consensus and a win-win situation but with greater costs reduction and faster agreement. Conclusion The proposition of the Civil Dispute Resolution Act of 2011 has empowered further the use of ADR as a means of solving disputes that would consume a lot of time in money if they were to be pursued through the traditional court systems. The lawyers have been at the forefront to advise their clients on the need to explore alternative means of conflict resolution since it gives outcomes which are more agreeable to the two parties. The lawyers focus more on mediating the problems between the people so that the issues cannot get to trial. This has cemented the new role of lawyers as dispute managers. Bibliography Atlas, Nancy F; Huber, Stephen K and Trachte-Huber, E. Wendy. Alternative dispute resolution. Chicago, Ill.: Section of Litigation, ABA, 2000. Barkai, John. “Applying the Hawaiian Mediation Model to Disputes and Conflicts”, Interspectives. 11(40): 1992 Barrett, Jerome T. and Barrett, Joseph. A History of Alternative Dispute Resolution: The Story Of a Political, Social, and Cultural Movement. San Francisco: Jossey-Bass, 2004. Bendix, Sonia. Industrial relations in South Africa. Cape Town: Juta, 2001. Bondy, Varda. Who Needs ADR? Judicial Review, Dec 2004 Brewer, Thomas J., and Mills, Lawrence R. "Combining Mediation and Arbitration." Dispute Resolution Journal. 20(4): 45-63, 1999. Center for Democracy and Governance (CDG). Alternative Dispute Resolution Practitioners' Guide. U.S. Agency for International Development Technical Publication Series, 1998. Civil Dispute Resolution Act 2011 No. 17, 2011 Costello Jr., Edward J. "ADR: Virtue or Vice?" Dispute Resolution Journal. 1999 Elkouri, Frank, et al. How Arbitration Works. BNA Books, 1997. Family Law Council of Australia and the National Alternative Dispute Resolution Advisory Council of Australia Letter of Advice to the Attorney-General on Parenting Plans Part 3, Mar. 2000. Retrieved on 01/09/2011 from http://www.ag.gov.au/agd/www/Flchome.nsf/Page/23060A7517DA516ECA256B43007E4AB7?OpenDocument. Fisher, Roger and Ury, William. Getting to Yes: Negotiating Agreement without Giving in (2nd Ed). New York: Penguin Books, 1991. Ford, Hunter. "Arbitration Pits Business vs. Consumers." Birmingham Business Journal. September 1, 2000. Goldberg, Stephen B.; Sander, Frank E.A. and Rogers, Nancy H. Dispute Resolution: Negotiation, Mediation and Other Processes (2d Ed.). New York: Little Brown and Co., 1992. Heidi, Burgess and Burgess, Guy M. "Discussion of Alternative Dispute Resolution (ADR)." In Encyclopedia of Conflict Resolution. ABC-Clio, 1997. Lancken, Stephen. 'The responsibility of the neutral in respect of mediation confidentiality', ADR Bulletin. 7(2): 25, 2004, Miller, John R. Alternative Dispute Resolution (ADR): A Public Procurement Best Practice That `Has Global Application. International Public Procurement Conference Proceedings, 2003. Minnesota Judicial Branch. Alternative dispute resolution. Retrieved on 01/09/2011 from http://www.mncourts.gov/?page=303 Palmer, Michael and Roberts, Simon. Dispute processes: ADR and the primary forms of Decision-making. Cambridge, UK: Cambridge University Press, 2005. Patterson, Susan and Grant Seabolt. Essentials of Alternative Dispute Resolution. Pearson Publications Company, March 1, 1997. Plapinger, Elizabeth and Stienstra, Donna. ADR and Settlements in the Federal District Courts: A Sourcebook for Judges and Lawyers. Federal Judicial Center and CPR Institute for Dispute Resolution, 1996. Practice Statement Law Administration, 2007.Retreived on 01/09/2011 from http://law.ato.gov.au/atolaw/view.htm?Docid=PSR/PS200723/NAT/ATO/00001 Purkey, William W.; Schmidt, John J. and Novak, John M. From conflict to conciliation: how to Defuse difficult situations. Thousand Oaks, Calif.: Corwin, 2010. Shook, Victoria. Ho'oponopono: Contemporary Uses of a Hawaiian Problem-Solving Process. Honolulu: University of Hawaii Press, 1985. Syme, David and Bryson, David. A framework for ADR standards: questions and answers on NADRAC’s report.ADR Bulletin; the monthly newsletter on dispute resolution. 4 (1): 2, 2001. Yarn, Douglas H. "Definition of Alternative Dispute Resolution." In Dictionary of Conflict Resolution. San Francisco, CA: Jossey-Bass, 1999.