Alternative dispute resolution Review Example

Alternative dispute resolution refers to dispute resolution techniques and processes falling outside the judicial process of the government. Despite the historic resistance that the alternative dispute resolution has faced from parties and their advocates, recently it has been accepted by many members of the legal profession and the general public. In fact some courts in some countries have encouraged some parties to resort to the Alternative Dispute Resolution process of some type, usually mediation before allowing the parties cases to be tried in the court.

The increasing popularity of Alternative Dispute resolution can be credited to a preference to confidentiality, the perception that Alternative Dispute resolution is cheaper and increase in the case load of the traditional courts. There are four types of alternative dispute resolution. These are mediation, negotiation, arbitration, and collaborative law. It can be used along side other legal systems that are existing such as common laws and the sharia courts.

The salient features for these types of alternative dispute resolution are: in Negotiation the parties volunteer and there is not third party to impose a resolution or to facilitate the resolution passed. Mediation has a third party who is charged with the responsibility of facilitating the resolution process and even proposing a resolution, however the mediator is not supposed to impose a resolution to the conflicting parties. The advantages of mediation are it is flexible, lower cost, improved quality of settlement and quick resolution of the dispute.

In arbitration the parties participation is typically voluntarily and there is no any third part to steer the process. Collaborative laws the resolution is facilitated by the parties’ attorney. Under the guidance of the attorneys, the aggrieved parties reach a mutual agreement. There is no imposition of an agreement. Collaborative law is usually a formalized process which is part and parcel of the litigation and the court system. The tradition of Alternative dispute resolution varies with country. Traditionally alternative dispute resolution is of two different types.

The First one is the informal method pendent or attached to the official mechanism of the judiciary. Second, the different method for resolving disputes outside official mechanism of the judiciary. In addition to these there are independent and free standing methods. All these methods are similar whether they are pendent or not. They use almost same skills and tool sets which are usually sub sets of the negotiation skill. Alternative Dispute Resolution includes informal meditative processes, informal tribunals, formal meditative process and formal tribunal process.

Forms of classic formal are private judges (on panels, over summary jury trial or sitting alone) and arbitration (non- binding, binding and advisory). The classical form of meditative process refers to a meditation that is carried out before a mediation panel or a mediator that has been appointed by a court. The structured transformative mediation that is usually used by the United States Postal Service is a formal process. An example of Classic informal methods includes intercession, non formal authorities’ referral and the social process.

Main differences between the informal and the formal processes are lack of or possession of a forma structure for procedural application and pendency to the procedure of a court. This paper is going to establish the effectiveness of alternative dispute resolution in reducing the civil court case load. However the paper will start by looking at the cost of a civil court trial. The cost of a civil court trial The cost of a civil court has prevented many people from going to seek justice. The confidence of the Members of the public is slowly weaning away.

According to Ritchie, the numbers of people who are seeking justice in the courts system have dropped by more than fifty three percent in the last five years. People are ignoring the Supreme Court and they are now solving their disputes outside the court by using mediators and arbitrators. With the ever rising cost of civil courts, Alternative dispute resolution system has gained popularity because it is a cheaper option. (Hansen et al p. 8 2000) The effectiveness of alternative dispute resolution in reducing civil court case load

Alternative dispute Resolution has been effective in reducing the back load to the courts by supporting and complimenting court reforms. Initially the number of cases in courts had increased at a faster rate because of the complex procedure that is involved in the court system. However alternative dispute resolution programs have supported a mission objective of reforming the court system and thwarting away some complex procedures that increases the court’s back load in several ways.

It has been used by the judiciary as a means of testing and demonstrating new procedures that has later been extended to or integrated with the current court procedure hence reducing the court’s back load. In the event that the main cause of the court’s back log are the inappropriate and the complex procedure involved, it has provided procedures which are streamlined hence it has accelerated the rate of disposition of cases. The procedures which it has offered have served as models that have later on been adopted by courts that have ended up registering a decrease in their backlog.

Court annexed alternative dispute resolution has also turned out to be a catalyst for a more extensive court reforms. Court annexed alternative dispute resolution programs in Uruguay, Columbia, and Argentina has evolved and is currently an integral part of programs for court reforms. According to Hansen et al the number of cases being brought in courts in these three countries (Uruguay, Columbia and Argentina) has reduced by more than sixty seven percent because of the reforms that alternative dispute resolution has brought in the court system.

Alternative dispute resolution programs have always proved effective in overcoming this situation and have ended up reducing the caseload in courts (Shaw et al 2001 pp. 12 – 20). In situations where the civil court systems have many institutional failures and weaknesses (systematic bias and inadequate resource) there is usually a big caseload in the courts. This is because of the incompetence of the judiciary system. In countries such as India, South Africa and Bangladesh, it was developed to by pass biased, corrupt or the discredited courts that could not handle cases and had a lot of caseloads waiting for them.

The number of cases in these countries had increased by more than one hundred and thirty six percent within a period of three years. However with the integration of the mediation board in the country’s judiciary system the number of cases in courts has reduced by more than forty eight percent. This is because of the confidence that citizens of these countries have toward the programs and because of its low cost of operation. Given that most of the people who are working in this system are volunteers.

Delays are endemic in many court systems and it has significantly contributed to the increase in caseload in courts. In some countries delays have been so extreme to the extent that they have resulted to denial of justice. Alternative dispute resolution has been effective in reducing caseloads in the courts because it has redirected cases that would have otherwise taken time to solve. Informal dispute resolution has significantly reduced the delay in dispute resolution which has indirectly reduced court back logs by redirecting some cases that would have gone to the court system.

Several studies that have been done in developing countries about the Alternative dispute resolution process have shown that the system has been effective in processing dispute cases quickly hence reducing the back log in courts. For example the mediation boards that were created in Sri Lanka managed to resolve sixty one percent of the cases within a period of thirty days and ninety four percent within a period of ninety days as compared with a year or a month as required by the country’s court system.

During this period when the mediation board was operating in Sri Lanka, the court backlogs in Sri Lanka were reduced by more than fifty percent. Judges in Ukraine predicted that ninety percent of civil court cases that were taking place in Ukraine could be successfully mediated to eliminate the back logs that the civil court dockets are facing. Case study of Hansen et al and the Ukraine have shown that Alternative dispute resolution have been effective in handling a large number of cases more efficiently and quickly thereby reducing the case loads in the judiciary.

Some studies have however shown that Alternative dispute resolution systems deals with more cases at a faster rate than courts, do not systematically address the questions as to weather the questions that Alternative dispute resolution have addressed are different or are similar cases from the ones that the courts have resolved, which could somehow explain the differences that is occurring in time resolution (Williamson 2003 pp. 22 – 30). In alternative dispute resolution everyone is usually in agreement with the decision that has been taken and rarely do they even appeal against the decision that has been taken.

These make more people to resort to it hence reducing the caseloads in the courts. In the court system someone can appeal whenever he/ she feels that he/she is not satisfied with the decision that the court has made with regard to the case. This appeal increases the caseload in courts (Hansen et al 2000). Alternative dispute resolution programs which have specifically been designed to deal with cases that could have been brought before the court, has also succeeded in reducing the court’s backload perhaps more efficiently and cost effectively.

It has complemented court reforms by reducing the caseloads in the courts. The caseloads in the courts have been reduced by increasing the accessibility to dispute resolution services for the disadvantaged people and by providing legal services to the disadvantaged group. On they can use the court system and dealing with some specialized cases that the courts lacks adequate equipment to make them handle the situation (Williamson 2003 p 31).

Many Alternative dispute resolution programs are usually created with an aim of cost reduction when in resolution of disputes both to the resolution system and the disputants. A good number of courts in developing countries have registered a backlog of cases because they are not having enough money to resolve the disputes. According to a study that was done in Guinea and Burkina Faso by USAID, the two countries do not have enough money to fund its judiciary system; because of these they don’t have enough personnel to resolve these disputes, this has resulted into an increase in backlog..

Alternative dispute resolution programs usually have a low cost of operation; because of its low cost of operation the system has succeeded in reducing the case logs in countries where it has been created. Experiences of some countries where the system is being used shows that the cost of reduction is a reasonable goal and many systems which are well designed have effectively succeeded in meeting this goal. The main reason for the difference in cost of operation is the simplicity and the absence of legal representation to the system.

A good example for this is in India when the lok adalat system is in operation. It is using twenty three rupees to handle a case as compared to the average fee of litigation that cost more than one thousand rupees. During this period, the number of backlogs in the Indian courts has also dropped by more than thirty two percent. This is because it is cheaper for the Indian government to fund the Alternative dispute resolution programs.

With a cheaper cost of operation the Alternative Dispute Resolution is able to handle many cases therefore effectively reducing the backlogs that the courts are facing. Many other Alternative Dispute Resolution programs have effectively reduced the number of backlogs because of their success in reducing the entire cost of resolving disputes and enabling easy access to justice for both the poor and the rich. Most of Alternative Dispute Resolution programs are run by a modest fee, either because they are funded by donors or they are run by volunteers.

For example, in Sri Lanka the total cost of filing for mediation is only five rupees and the number of cases that have been received by the country’s mediation board has increased by from thirteen thousands two hundred and eighty in 1991 to one hundred and one thousands six hundred and thirty nine in 2008. At the same time the caseloads in their civil courts have dropped by more than eighty six percent during this period, a fact that many scholars have attributed to reduction in cost of civil litigation.

This is shows that the lower cost of Alternative Dispute Resolution program has effectively reduced the case loads in court (Hansen 2000 pp. 18 – 19) Alternative dispute Resolution programs are also effective in reducing the caseloads in courts; this is because they are more effective than courts when it comes to resolving or addressing particular types of disputes such as family disputes, public environmental disputes and environmental disputes. This has made it to attract more people hence reducing the number of people who are going to the civil court.

Specifically designed alternative dispute resolution has created more alternatives to the court systems. Programs which have been specifically designed have attracted more alternatives to the courts even when the courts are functioning well. Some National government agencies have created specific Alternative Dispute resolution systems that are meant to parallel or to precede the formal administrative hearings, this has succeeded in easing the pressure faced in courts.

For example the Philippine department of natural resources and environment has formed provincial multi stake holder’s panels to receive and resolve land disputes by the indigenous. This has reduced the number of land cases which are being taken to courts in Philippines. According to the Philippine government statistics, the numbers of land cases being taken to courts have reduced by more than eighty six percent since 1993 this has also reduce the work loads in courts by more than thirty one percent.

The survey also pointed out that many people who have land disputes prefers going to the ADR because they feel that they are more effective than courts when it comes to resolving or addressing particular types of disputes such as land disputes (David et al 2004 pp. 22 – 45). Alternative dispute resolution has been effective in reducing the case loads in courts. This is because it has established a high level of satisfaction among the disputants.

It has managed to do this because of the feeling by the disputants that it is easily accessible, the feeling that they (disputants) are the ones who control it, the disputants like the way that it is treating them and its community based nature. The high level of satisfaction has also been reflected by the high rates of compliance and satisfaction, nearly eighty seven percent of alternatives. Despite the fact that increase in satisfaction of the disputants was one of the objectives that the USAID had identified earlier in its studies, satisfaction of users has been the indirect proxy for more proxy concerns e.

g. delay, access and cost. Beyond these factors, satisfaction of the disputant has also been affected by subtle factors such as the effects of the Alternative dispute resolution process on the ongoing personal relationship, the outcome’s creativity and the confidence of the disputant that the system is responding to their needs. Alternative dispute resolution has become more attractive to people who were once shying away from it because of its ability to have a positive influence in all the above components. It has managed to attract more people to it.

When assessments of the overall user satisfaction have been included in the valuations of the alternative dispute resolution, it is favorable as compared to the court system because of the feeling of user satisfaction. A good example is in Sri Lanka, where the courts have registered a significant drop in the number of caseloads in its court, because people feel that they are more satisfied with the mediation board (alternative dispute resolution) the people are going to mediation courts to solve their issues.

This has significantly reduced the rate of caseloads in court (Barbara1999 pp. 2 – 18). According to Hansen et al, several studies that have been done on Alternative Dispute Resolution program shows that it has reduced the work load in courts by reducing the formalities of the legal process which has been said to be responsible for the big work load that the civil courts are faced with. In Bangladesh and Kenya, for example the court requirement of legal representation is both intimidating and costly.

In Kenya, over sixty three percent of people who are in jail do not have enough money to hire a lawyer while the strict castle system in India and Bangladesh do not allow people to interact with members of high class (Lawyers). This has increased the numbers of workload in courts because in such cases the courts have to intervene and at time has to hire lawyers for the offenders. People who have used ADR have shown that they prefer using it because of this the program has effectively reduced the work loads in court as more people are opting for it (Williamson 2003 p 32 -35).

Alternative dispute resolution has really proved effective in reducing the civil court case load. This is because it has sharply increased the rate of settlement. According to a survey that was done by the federal judicial center, cases that were taken for trail reduced by more than fifty six percent in the past three years for the areas where the alternative dispute resolution had been adopted. Conclusion Alternative dispute resolution has effectively reduced the work load in courts.

This is because of the following factor, the program is cheap, the program is faster, and the program has reduced the court procedures which used to increase duration of cases. As result of this the work load has been substantively reduced. Some scholars have argued that the system is so ineffective this is because the numbers of cases that it is reducing are too large for them to handle. They are quick to point out that what has happened is simply a shift of work load from the civil courts to the Alternative dispute resolution system.

Alternative dispute resolution programs just like other development programs will only be effective in meeting its objective when they are operating within a context that is hospitable. Some specific background conditions that are so relevant for Alternative dispute resolution to be effective in reducing the caseloads in courts includes a rough parity in the disputant’s power, adequate financial support, supportive cultural norms and political freewill.

Alternative Dispute Resolution process can be designed to meet different objectives including reducing the court’s work load. Most of these goals are usually geared towards settlement of disputes and improving the administration process of the justice system. The writer of this paper is of the opinion that Alternative Dispute Resolution program should be adopted so as to decrease the work load faced by this the civil court system. In their creation all the necessary factors should be taken into consideration Reference:

Barbara M (1999) Court annexed arbitration in India & Bangladesh Dian publisher pp 2 – 18 David W & Madeline C (2004) recommendations & concerns to the alternatives to the high litigation cost Hansen M & Thomson L (2000) Alternative Dispute Resolution: what is it Dian Publisher pp. 8 -29 Shaw M & Keating M (2001) compared to what definition of terms in court related Alternative Dispute Resolution programs Journal of negotiations pp 22 – 42 Williamson J (2003) improving court system Alternative Dispute Resolution Yale University press pp 15 – 35