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The process of alternative dispute resolutions
Mediation vs conciliation essay
The process of alternative dispute resolutions
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This essay will provide a detailed examination of what Alternative dispute resolution (ADR) is, particularly mediation, the various techniques of ADR, the advantages and disadvantages of ADR; and whether or not courts should have the authority to compel individuals into undertaking mediation or other forms of ADR. This essay argues against courts having the power to compel litigants into mediation but may be afforded powers to encourage parties to go through mediation at first instance. This essay will base its arguments on whether courts should compel civil litigants to follow the ADR route upon the perceived advantages of ADR and its success rate. The contention of this essay is not that mediation is inappropriately used to settle disputes, but that court-ordered mediation is inappropriate.
I will begin with a brief overview of Alternative Dispute Resolution, its advantages and disadvantages and focus primarily on mediation. The next section will explain the process of mediation and then go on to give reasons as to why court-ordered mediation is inappropriate.
ADR is a term generally used to refer to informal dispute resolution processes in which the parties meet with a professional third party (not a judge in his professional capacity and sometimes more than one third party) who helps them resolve their disputes in a way that is less formal and often more consensual than is done in the courts . Goldberg, Green and Sander , identifies four separate goals of ADR; to relieve the court congestion as well as undue cost and delay; to enhance community involvement in dispute resolution process; to facilitate access to justice; and to provide more effective dispute resolution. The concept of ADR is extremely broad. Defini...
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...72–73 (1997).
Roselle L. Wissler, The Effects of Mandatory Mediation: Empirical Research on the Experience of Small Claims and Common Pleas Court, 33 WILLAMETTE L. REV. 565, 565 (1997) .
Spangler, Brad. “Alternative Dispute Resolution (ADR). “Beyond Intractability. Eds. Guy Burgees and Heidi Burgees. Conflict Information Consortium, University of Colorado, Boulder. Posted: June 2003
S. GOLDBERG, E. GREEN, & F. SANDER, DISPUTE RESOLUTION 503 (1985)
Sir Rupert Jackson, Review of Civil Litigation Costs: Final Report (2009), ch 21, para 4.2
Stevens H. Clarke & Elizabeth Ellen Gordon, Public Sponsorship of Private Settling: Court-Ordered Civil Case Mediation,19 JUST. SYS. J. 311, 336 (1997).
The Lord Chancellors Dep’t, Alternative Dispute Resolution, A discussion Paper, Annex B (Nov. 1999) available at http://www.dca.gov.uk/consult/civ-just/adr/annexbfr.htm
Sue contracts with Tom to deliver a quantity of computers to Sue’s Computer Store. They disagree over the amount, the delivery date, the price, and the quality. Sue files a suit against Tom in a state court. Their state requires that their dispute be submitted to mediation or nonbinding arbitration. If the dispute is not resolved, or if either party disagrees with the decision of the mediator or arbitrator, will a court hear the case? Explain. (See Alternative Dispute Resolution.)
Ulrich, G. (1999). Widening the circle: Adapting traditional Indian dispute resolution methods to implement alternative dispute resolution and restorative justice in modern communities. Hamline Journal of Public Law and Policy. 20, (2), 419-452.
9. Woodgate, R., Black, A., Biggs, J., Owens, D. (2003). Legal Studies for Queensland, Volume 1, ForthEdition, Legal Eagle Publications: Queensland. 10. Woodgate, R., Black, A., Biggs, J., Owens, D. (2003).
Mason, The Hon Sir A, 1988, ‘The use and abuse of precedent’, Australian Bar Review, vol. 4, no.1, pp. 93.
[11] Ingam, T., The English Legal Process, 10th Edition (Oxford: Oxford University Press, 2004) p.224. [12] Supra at note 2, p.1. [13] Id. [14] Id. [15] Spencer, J. R., Jackson’s Machinery of Justice, 8th Edition, (Cambridge: Cambridge University Press, 1989). [16] Id.
At the behest of Solicitor General John Les, an inquiry was launched in February o...
Journal of Dispute Resolution, 401-427.
Mazadoorian, H. N. (2007). The Promise of ADR in Healthcare Disputes. Dispute Resolution Journal, 62(1), 17.
Ott, Marvin C. "Mediation as a Method of Conflict Resolution: Two Cases." International Organization 26.04 (1972): 595-618. JSTOR. Web. 3 Dec. 2013.
Poitras, J. (2007). The Paradox of Accepting One's Share of Responsibility in Mediation. Negotiation Journal, 23(3), 267-282. Retrieved January 23, 2012, from ABI/INFORM Global. (Document ID: 1313496891).
Alternative Dispute Resolution (ADR) involves dispute resolution processes and techniques that fall outside of the government judicial process. There has been moves against ADR in the past by entities of many political parties and their associates, despite this, ADR has gained inclusive acceptance among both the broad community and the legal profession in past years. In fact, many courts now entail some parties to remedy to ADR of some type, usually mediation, before allowing the parties' cases to be tried. The increasing attractiveness of ADR can be clarified by the increasing caseload of traditional courts, the perception that ADR imposes fewer costs than litigation, a preference for confidentiality, and the desire of some parties to obtain larger control over the selection of the individual or individuals who will decide their dispute.
Several methods of ADR exist. The most commonly employed methods include negotiation, mediation, and arbitration. Under federal law, national policy favors arbitration. Sometimes ADR is perceived as unfair, because parties have unequal power relative to each other or because the subject matter of the dispute is not considered suitable for ADR. Like other areas of law and public policy, ADR is dynamic and subject to change, particularly when special interest groups coalesce successfully and create momentum for change within our legal system.
(Brown & Bailey, 1997, Legal Studies, pg.202, para 5) All in all, the adversarial method used by the Australian legal system has shown its flaws, and the advantages of other methods of resolving disputes have been reviewed. It can be seen that the Australian legal system is slowly adopting these other methods of resolving disputes such as Tribunals, Alternative Dispute Resolutions, and also the Inquisitorial system to a certain extent.
...sfied with the outcome and resolution from the mediation session, the parties are given liberties to engage with a court procedure.