How the alternative dispute resolution movement is reshaping our legal system
Alternative dispute resolution is a term that is used to refer to a wide range of dispute resolution systems that are alternatives to complete court processes. This term can be used to pass on everything from one point of smoothing the progress of settlement face to face negotiations where the disputants are persuaded to negotiate directly with one another preceding to some additional legal processes to arbitration mechanism which is somehow similar to the courtroom practice. Within the alternative dispute resolution, there are developments that can be established so as to manage a community apprehension and facilitate the development of a community (Zekoll, Bälz, & Amelung 2014). These alternative measures are regarded as new hybrids methods hat make use of the courtroom process that is involving even the mini-trial. There has been an evidenced success from the use of the ADR systems in settling a dispute over the years in reshaping businesses as well as the legal systems. This paper therefore will provide an in-depth discussion on the background of ADR’s, the various types of alternative dispute resolutions and how these ADR’s has influenced change in the legal system.
Over time, ADR’s have development and their concept is widely growing from the confident voice of hope to the disputers and their determination to solve the disputes outside the courtroom. This has shifted the system into one that offers a series of alternatives that are applied in solving the disputes even in a flexible manner of private negotiations. They are not only used to settle existing disagreements but they are as well used to prevent a dispute from occurring. These ADR systems and institutions have not advanced so as to substitute for the unsuccessful court process but instead as a progression of traditional and civic systems that have been existing as alternative resolution procedures. However, they have greatly influenced the change in the court process. There are various types of ADR’s mechanisms that are used in the settling of disputes amongst different groups of people. These mechanisms include negotiation, arbitration and mediation. These ADR systems are voluntary and hence they do not really require litigants for the negotiation, mediation or conciliation to take place. This is different from the judicial legal processes as they are mandatory and this scares away the disputants. This is because of the availability of the voluntary process that drives the disputants to have a free submission of the dispute as it is entirely determined by the willingness of the people. This is changing the phase of the legal judicial systems as they are transforming from being entirely mandatory but rather they are adopting informal systems that they are using in order to enhance the disputants to freely use this system to solve their disagreements.
Dispute resolution strategy is one of the resolution strategies that have been used over a long period of time outside the courtroom. What is new in this system is the extensive development and increase of the ADR’s replicas, increased use of court related ADR, and the improving utilization of the ADR as a tool that can recognize goals on a broader perspective than that of the settlement of a specific disagreement. Alternative dispute resolution dates back to 1960’s when the United States was experiencing the civic and political disputes (Zekoll, Bälz, & Amelung 2014). The introduction of new laws that were used to protect the rights of individuals, as well as reduce the lenience of unfairness and injustices, more citizens sued others so as to settle the disputes. As a result of the increasing lawsuits, the alternative dispute resolution measures diversified and started to be effective where they solved disagreements (Nosyreva 2010). Therefore, there was need to launch the ADR mechanism in 1970 which started as a social movement that was determined in resolving the wide range of community’s civil rights disagreements through the mediation process. it also started as a legal movement that aimed at addressing the increased delay and the expenditure in litigation process that arose due to the crowded court process. Since that time, the legal ADR movement has gained popularity in the United States and has evolved from the experimentation stage into the institutionalization stage with the support of the court system in America and the states government. With the flourishing mechanisms of ADR, the ADR advocates realized that the use of these mechanisms outside of the courtroom has played a major role in solving of sophisticated disputes that would better meet the needs of the disagreeing parties and with their communities. This therefore reduces the over-reliance on the legal system thus strengthening the public institutions as they preserve the relationship between the disputants and this teaches the use of alternatives to hostility or litigation for disagreements settlement. The demand for ADR has also risen to various sectors and even in businesses as it has aided in the efforts of coming up with a more better and effective option to litigation. This has dramatically increased the use of ADR mechanisms in the private sector hence resulting to an explosion in the numbers of private organizations that provide ADR services. Currently, the ADR mechanism is diversified and can be used to solve a variety of disputes between families, churches, government, institutions, courts and workplaces (Zekoll, Bälz, & Amelung 2014). The move of the ADR’s from the experimentation into institutional field has impacted the United States rule making in their administrative roles and even in the federal litigation procedure. Laws that are now established are used to sanction and persuade agencies to utilize the ADR mechanisms in their administration, local community involvement and disagreement resolution. This ADR movement has grown from the developed nations to the developing nations. They are being implemented everywhere so as to meet goals on social, political, economic and legal sectors.
Alternative dispute resolution mechanisms have been used in supporting a mission aim to reform the court process in various ways. They have been widely used by the judiciary to test as well as to reveal new measures that might be extensive to or incorporated with the existing court actions (Nosyreva 2010). These ADR systems are established as an alternative within the judicial process, either connected with the courts as a way of managing the available caseloads or rather separated from the courts so as to offer disagreement resolution for disputes or constituents that are not adequately served by the court.
The alternative dispute resolutions are used to offer streamlined processes that accelerate case disposition in a courtroom if the main dispute within the court is just complex and unsuitable and not institutional issues such as prejudice and corruption. These processes sometimes serve as models that are later integrated into formal court processes. This may result in an extensive court restructuring as catalyzed by the ADR’s mechanisms.
These ADR’s also play a major role in the reformation of the courts process as they are intended to deal with cases that have an opportunity to go to the courtroom system but may rather be settled using the ADR mechanisms and with more satisfaction than even the one expected in the courtroom system. In such cases, the ADR system compliments the court redesign as it reduces the number of caseloads that the courtroom has to settle. They are as well responsible of court reform since they lead to the increment of access to disagreement settlement of the disadvantaged groups (Main 2005). These ADR systems undertake this through offering of advice to the disadvantaged group on whether and the way in which they should use the court procedure and in dealing with specialized cases that the court process is inadequately equipped to solve. ADR mechanisms offers quantify of justice to particular groups such as the minorities and the women. These groups of people fail to get justice in the legal court systems as they are poorly represented by the courts. These ADR programs are therefore important as they have changed the legal system as they have recruited women who are involved in the ADR panels in the ADR programs (Menkel-Meadow 2013). This allows the women as well as the minorities to be able to receive effective protection and more compensation from these ADR mechanisms than they receive from the formal legal systems.
ADR mechanisms help in the improvement of the public involvement in the local community as the locals are actively involved in the settlement process. This enhances consensus building thus settlement of the social problems. This improves the skills and potential of the local leaders as they are trained on the ADR processes especially in the personal enterprises that help them to develop a moral civic engagement in the society. These ADR processes are designed in a way that impacts on the intensity of social tension and the hidden conflict and individual disagreements. This focus of the ADR processes is far much different from that of the formal legal systems. The public are therefore educated and early interventions are made in any potentially explosive disputes through the use of third parties. These mechanisms are therefore suited into conveying stakeholders together with an aim of reaching a consensus on some of the development initiatives.
The nature of the ADR has encouraged and also complimented the court reform through their various potential to cover a wide range of cases. ADR’s are used in case build up which damage the effectiveness of the court system and in complex procedures that also result to the ineffectiveness of the court process (Zekoll, Bälz, & Amelung 2014). These mechanisms are not limited as they help the illiterate as well as the poor who cannot be able to afford or even manage themselves within the court system. These ADR systems are not limited geographically as they can be used in dispersed populations so as to solve the disputes.
The ADR mechanisms are also essential in the restructuring of the legal systems of the court as they have the ability to find a way around the unsuccessful or discredited courts. Civil courts systems are dominated by institutional weaknesses and malfunctions due to the increased prejudice, corruption and insufficient resources for their effective functioning (Menkel-Meadow 2013). This results to a no near term viewpoint of effective public court reform thus driving the ADR mechanisms to step up as they offer appropriate strategies of implementing an alternative measure that would help to solve the disputes.
Justice has been credited to the populations that are inappropriately served by the court system through the ADR systems. This ADR system has been used with intent to help those populations where corruption and inequality is high and this discredits a court system due to the unreasonable just for a part of the population. Therefore, ADR mechanisms are the best form of resolution programs that are suitable in these regions as they would help to provide reasonable judgment and settlement without any biasness or even corruption. The ADR programs has therefore been implemented thus effectively replacing the court system as they play the role of central measures of resolving civic disagreements (Zekoll, Bälz, & Amelung 2014). The growth of ADR mechanisms in these areas have increased resulting to more of mediation, arbitration and negotiation amongst the population. The number of court systems has lowered as many people prefer the ADR system and only use the court system incase the mediation process fails. These ADR systems and institutions have not advanced so as to substitute for the unsuccessful court process but instead as a progression of traditional and civic systems that have been existing as alternative resolution procedures. However, they have greatly influenced the change in the court process.
The ADR’s have proven to be more effective in handling cases that are complex and those that are technical. These specialized ADR systems are involved in settling of disputes related to the environment, construction and exclusive rights disagreements. They thus act as substitutes for the systems used in the court which may lack qualified expertise to settle the disputes and come up with the best decisions on the issue.
Ethically based issues as well as family issue are better settled using the ADR systems than the court procedures. These specially designed ADR mechanisms usually establish more attractive measures to courts even when the courts are working out well. These ADR systems maybe designed to correspond to formal managerial hearings by the national government organizations.
The satisfaction that is offered by any legal system on the disputants is one of the goals of the system and it determines the user’s population. Satisfaction of the user may be determined by the cost of the system, its accessibility and delay and the outcome of the use of the system. The use of the ADR mechanisms on commercial activities and personal relations builds up the disagreeing party’s confidence as the mechanism responds to their requests. According to an evaluation on the same, the ADR systems offer a higher satisfaction as compared to the legal systems. Due to the preservation of relationships amongst the disputants after reconciliation most people prefer these mechanisms in their reconciliation process. Legal action is not preferable due to its high cost, lack of creativity, inaccessibility and inflexibility of the legal process thus resulting to an inefficient decision making on the disputants.
The ADR mechanisms have a minimal legal formality and this result to the encouragement on the use of the system. On the other hand, the legal system of courts has a level of formality that daunts the disputants thus discouraging them from using the system. This therefore has resulted to a more preference for submission of cases to mediators, arbitrators and negotiators who are local inhabitants and have a well knowledge on the community.
In most of the legal court systems, delays are prevalent throughout the world and this affects a number of development goals. To some extent, the case delays are very intense that they in actual fact denies justice and especially to the disadvantaged group of people who may not be able to drive justice procedure (Menkel-Meadow 2013). These delays in the in the resolution process on the commercial disagreements weakens the economic development and destabilize the competence of the economy. The use of ADR mechanisms for resolving disputes reduces disagreements resolution delays and indirectly minimizes courtroom backlog through the redirecting of cases that would otherwise be taken to court. This may help to serve a selection of USAID strategic goals outside the courtroom. These have thus made the ADR strategies to be successful in dealing with large number of cases in a quick and effective way.
As a result of the many benefits that come along with the alternative dispute resolution mechanisms, the federal courts are transforming from the legal system and are incorporating the use of ADR system. The state courts are thus required by law to provide some types of ADR while most of these courts persuade the disputants to first attempt settling their disagreements through either the mediation, negotiation or arbitration strategies before they can go ahead with suing each other and waiting for a trial date.
Conclusion
It is therefore evident that the ADR mechanisms are aiming at compensating the shortcomings of the existing legal systems such as high expense, more delays, inaccessibility issues, exclusion of some parties due to conflict of interests and a win or lose results which results to a dissatisfaction of the outcomes hence discrediting of the legal system. Practically, all legal court systems are tolerant and also they all actively promote the progression of the alternative dispute resolution systems for some categories of arguments. The growth of the ADR has increased numerously due to the inadequacy of the judicial systems resulting from the inadequate resources hence courts acting either at or above their capacity. The ADR are less expensive and are not limited to any group of people as they are favorable for the disadvantaged groups and the poor due to their cheap cost and flexibility and reduced delays. Due to these benefits the ADR has been incorporated in the legal court systems and are becoming increasingly formalized due to the raised issues of transparency. Therefore the creation of the ADR’s has changed the phase of administration of the legal court system. They act as a rival as well as a compliment to the formal mediation. This is because of the function ability of the ADR mechanisms which makes the system to be competent, convenient and produce good outcome than the legal court system. Thus the modern civil justice is administered in a dual process with the court adjudication system on one end and informal adjudication mechanisms on the other end. This has greatly yielded far much better outcomes with great satisfaction and acceptance of the results. The dual adjudication process of the civil justice has enhanced the legal court systems to adopt some of the best alternative dispute resolution mechanisms that bring about equity. Meanwhile the courts are making efforts in crystallizing the authority of equity of the complex and technical procedures that has turned the court process to be a failure.
References
Main, T. O. (2005). ADR: the new equity. U. Cin. L. Rev., 74, 329.
Menkel-Meadow, C. (2013). Regulation of Dispute Resolution in the United States of America: From the Formal to the Informal to the ‘Semi-formal’. Regulating Dispute Resolution: ADR and Access to Justice at the Crossroads, Felix Steffek, Hannes Unberath, Hazel Genn, Reinhard Greger & Carrie Menkel-Meadow, eds., Hart.
Zekoll, J., Bälz, M., & Amelung, I. (2014). Introduction: The Changing Face of Dispute Resolution. In Formalisation and Flexibilisation in Dispute Resolution (pp. 1-13). Brill.
Nosyreva, E. (2010). Alternative Dispute Resolution in the United States and Russia: A Comparative Evaluation. Annual Survey of International & Comparative Law, 7(1), 3.
