Meaning, advantages and disadvantages of Alternative Dispute Resolution (ADR): Disputes are bound to arise in dealings in life. For this reason, the courts were created to resolve and amicably settle disputes which arise between individuals or individuals and the government. The mechanism through which the court settles disputes is through adjudication in the Court of law. However, the demerits of adjudication in Court which includes time wasting, expensive nature, et cetera has led to modern legal development of Alternative Dispute Resolution.
What is Alternative Dispute Resolution?
Alternative Dispute Resolution is the process of initiating alternative methods and procedures of resolving a dispute without resorting to litigation. It is therefore any means of settling dispute outside the courtroom with the help of an impartial third party, providing a confidential and alternative method to resolve legal disputes.
Forms of Alternative Dispute Resolution
1. Conciliation: This is a form of ADR which involves the bringing together of disputants by a conciliator who settles their dispute by negotiated settlement.
The Conciliator is an impartial person that assists the parties by driving their negotiation and directing them towards a satisfactory agreement. The conciliator meets with the parties, participates in their negotiation, and help the parties reach a negotiated settlement by:
Making proposal to the parties on the terms of possible compromise settlements
Participating in the discussions o the subject of the dispute with the parties present in a meeting with him on possible terms of conciliation
Making his proposal on the views of each party available to both side to mop out areas of agreement and disagreement.
2. Reconciliation: This is the act of harmonizing differences and settling disputes. Here parties to a dispute confer with each other and reach an agreement on how to restore or bring back harmony in their relationship.
Reconciliation is a form of ADR where parties look for a resolution of their dispute on a voluntary basis, assisted by a reconciler.
3. Mediation: It is another form of ADR, a facilitative process in which disputing parties engage the assistance of a neutral third party who acts as a Mediator. Here, the third party called the mediator seeks to provide an acceptable formula for compromise and harmonious co-existence between the parties. The Mediator offers suggestions on possible terms of settlement between the parties which have no binding force in the sense that the disputants are left to decide whether or not to accept the suggestions.
4. Arbitration: Arbitration is the most formal form of Alternative dispute resolution, and it takes decision making away from the parties.
Arbitration is a form of ADR wherein parties to a dispute agree to have it settled by an independent third party and to be bound by the decision of that arbitrator. The Arbitrator being a third party qualified to handle arbitration probes into the facts of the case and gives a decision on merit.
Advantages of Alternative Dispute Resolution (ADR)
1) Alternative Dispute Resolution (ADR) is Speedy: While the adjudicatory method of dispute resolution takes time in the determination of a case or settlement of a legal dispute, non-adjudicatory methods on the other hand are speedy, saves time, and avoids delays and uncertainties of adjudicatory trials.
2) Alternative Dispute Resolution (ADR) is Cost efficient: This means that ADR is comparatively less expensive than litigation as there will be less fees incurred by the parties in the determination of their case.
3) It is flexible: This is so as parties have the flexibility to select the procedural rules which will apply to their dispute and they have the power to control their own fate rather than relinquishing the power to decide their rights to an adjudicator, and they also have the power to select their arbitrator or mediator.
Additionally, ADR is free from formalities of Court such as the rules of Evidence, witness, con comitant delays, and all that.
4) Technical Expertise: In arbitration, the arbitrator is an independent professional who has technical knowledge of the matter before him, as such is a specialist in that field and has experience of arbitral process. Meaning that he will be able to dispense justice effectively and efficiently unlike in the adjudicatory method wherein a judge may be ignorant of some technical aspects of the case at hand
5) Alternative Dispute Resolution (ADR) fosters cooperation as it allows parties to work together with the neutral arbitrator or mediator to resolve the dispute and come to a mutually acceptable remedy.
6) Proceedings in ADR are confidential: The parties usually agree to keep the resolution reached at the negotiation or arbitrator hearing private. This is not possible in an adjudicatory method, as most trials and proceedings in the adjudicatory method are open to the general public/ press. The confidentiality of ADR allows them to focus on the merits of the dispute without concern about it’s public impact.
7) Alternative Dispute Resolution (ADR) permits parties participation: This means that in an Alternative dispute resolution, parties are allowed to participate in ways such as telling their side of the story, suggesting remedy, and even having control over the outcome of the trials. This is not obtainable in a Court system.
Disadvantages of Alternative Dispute Resolution
1) There is no guaranteed resolution of Dispute: In Alternative Dispute Resolution (ADR), you may spend your money and time in hiring a third party to settle your dispute, however there is no guaranteed settlement of dispute by the third party as either of the parties to the dispute may disagree with his final resolution, and this will Lead to the dispute still having to proceed to the Court for hearing.
2) Decisions reached in ADR may not be binding on the parties especially in cases of reconciliation and mediation proceedings. The final resolution to the dispute is open to the parties either to accept or reject.
3) Alternative Dispute Resolution (ADR) does not give room for consolidation of actions, as it is not possible to bring Multi-party disputes together because ADR is a voluntary agreement between parties and parties cannot be compelled to submit to arbitration, conciliation, mediation, or reconciliation.
4) Some decisions reached are subject to the overriding powers of the Court. For example, the courts have an inherent jurisdiction to remit or set aside an arbitral award where there is an error of law on the face of the award.
5) There is absence of Legal Precedent: In ADR, there is no rule of Judicial Precedent, neither is there adherence to Precedent or the production of Precedent as most of the proceedings are kept private and confidential.
6) Alternative Dispute Resolution (ADR) may more often than not protect the legal rights of the parties.
Conclusion: So far, we have discussed the major advantages and disadvantages of Alternative Dispute Resolution (ADR). It is apparent from the abovementioned points that ADR also has it’s good sides and bad sides too. Nonetheless, in my opinion, I believe that some situations are better handled through ADR and the normal court system.