Alternative Dispute Resolution Methods and Procedure

 

 ADR as it is simply refers to is the process of resolving dispute out of court.  lt is a medium of settling cases that are filed in court as well as resolve dispute that never get to court.

Alternative dispute resolution processes most time saves time, money and the burden of going through hectic court system processes. It has the tendency of dealing with and resolving all issues a party has against another party whereas filing a lawsuit in court may not address all the problems. The basic methods of alternative dispute resolution are negotiation, mediation and arbitration.

Negotiation 

This is one of the basic ADR methods, its process is informal in nature unlike filing a lawsuit in court. It allows parties to discuss conflicts and reach a mutually acceptable agreement. In negotiation the parties willingly decide to be part of the negotiation process, it is not forced on them and they also have a say in determining if the process should be private or not. The parties have the opportunity of engaging the services of an attorney to assist them in the negotiation process. The primary duty of the attorney is to assist you in determinig your goals and objectives before negotiation commences and to also protect your interest during negotiation process. None of the attorneys engaged by both parties can or has the power to decide whether you should  accept or reject a settlement offer,  only the parties involved are in the position to do so. It is also worthy of note that if an agreement is reached and all disputant accepted the agreed terms then the agreement is binding and enforceable in the court of law if any of the parties fails to keep his or her own part of the agreed terms

Mediation

This is another ADR method, its process is also informal in nature. It is a private means of discussing conflicts and reaching an agreement. The participants in mediation just like in negotiation willingly decide to be part of the mediation process. The parties are introduced to a mediator who usually is somebody trained to resolve conflicts and at the end seek agreement that is acceptable to all disputants. Mediators are in no position to tell the parties what to settle for or recommend an outcome, he or she can only assist the parties negotiate effectively by enumerating all concerns of both parties, ensure accurate communication and help the parties create solutions. If an agreement can’t be reached the mediator can’t force or impose a result. It is only when all disputants accept an agreement that mediation is said to be concluded. Mediation just as in negotiation any agreement reached is binding and enforceable in court if it does not lack any requirement for a contract. If a party fails to abide by the contract terms, the other party has an option of either remediating the dispute or enforcing the agreement in court.

In the event that a party is emotionally, financially and educationally stronger than the other. The mediator will encourage the participation of all the parties by meeting with each party separately and persuade them to consider and weigh all options. He or she may suspend the process until all parties obtain the legal counsel, financial information or moral support needed to evaluate the case and make appropriate decision. The mediator ensures all parties understand the agreement and have carefully considered all alternatives and feel that the resolution represents their best option before the disputants accept an agreement. Also in an extreme situation where inequality can’t be handled such as if there exist several deficiency in information, language barriers, physical abuse or mental problem. The mediator will inform the disputants to terminate the mediation, suggest parties obtain legal counsel and discuss other alternative dispute resolution option available. It is worthy of note that mediation is voluntary and any party feeling disadvantage can leave at any time.

Arbitration

This is also an alternative dispute resolution method which is more formal in nature compared to mediation but less formal than filing a lawsuit in court. It is a private process, it saves time and money. In arbitration, mutually accepted agreement may be binding or non binding as the parties decide at the beginning of the proceeding. If an agreement is binding the decision is final and enforceable in the court of law but if it is a non binding agreement either party that is not satisfied with the agreement can file a lawsuit in the court and have his dispute litigated. At the arbitration hearing, parties present evidence either written or oral to an arbitrator who usually is selected by the parties or appointed from a preselected list. In arbitration,  resolution are not decided by the disputants as in mediation but instead imposed on them by the arbitrators. They usually decide cases by issuing a written decision or award following arbitration hearing. It is important to know that if the parties agreed to a final and binding award, the award will be legally enforceable in court. An arbitration award is as effective as a decision made in court following a trial. In arbitration parties are given same opportunity to fully present their case without being hindered by technical rules often associated with filing a lawsuit in court in other words a party with less resources may not be as great a disadvantage as he or she would be at a formal trial.

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