Literature review
In today’s world more than 07 billion human beings living on this planet they are divided in several regions countries and within countries there are several different languages, races, ethnicities religions and several other segments depending upon which part of the world we are discussing. The difference in Human society on any basis could become the foundation of disagreement which could lead to a dispute and later a conflict this difference could be on the clash of interest, values, culture or difference in norms.
It is important to differentiate between a conflict and a dispute. According to Burton (1990) a dispute is a short-term disagreement that can result in the disputants reaching some sort of resolution; it involves issues that are negotiable. Conflict, in contrast, is long-term with deeply rooted issues that are seen as “non-negotiable”. Basically there are many other ways in which it can be explained. Additionally, conflicts could be between two different individuals, between a man and society or a group, sect, race ethnicity, religion, region etc. Murdoch and Hughes (2008) explain that disputes occur because ‘people are interacting in some way’. In other words dispute can also be considered as disagreement or argument where two or more parties fail to agree over any mutually acceptable point. This disagreement could be a verbal controversial disagreement an altercation debate publically which normally occurs between contesting politicians and parties having opposing views, claims or in general different way to react or behave to a certain situation or problem resulting in disagreement or dispute it could possibly be clash of interests clash of values or cultures.
The Law Reform Commission (2010) explains the process of Alternate dispute resolution as: “A broad spectrum of structured processes, including mediation and conciliation, which does not include litigation though it may be linked or integrated with litigation, and which involves the assistance of a neutral third party and which empowers parties to resolve their own disputes”
The process of alternate dispute resolution is an orchestrated confidential process that includes mediation and conciliation not inclusive of litigation it normally occurs with the help of neutral, impartial independent third party. In the initial stage of dispute resolution the decision reached does not bind parties legally to follow it; Alternate dispute resolution is a facilitative process where an agreement or settlement is encouraged by neutral third party in the mutually agreeable way by involved parties.
Advantages, disadvantages & Critical Analysis of Alternative Dispute Resolution:
Alternate dispute resolution is a private and confidential process normally used to avoid court proceedings or litigation process which is more time-consuming and lengthy and have other complications in terms of enforcement of decision. (Ashworth et al. 2013, Cited by Cunningham 2015) mentioned following advantages of alternate dispute resolution. “Private - Confidentiality is retained. Speed - A matter of days rather than weeks, months or even years. Economy - Legal and other costs resulting from lengthy litigation are avoided. They argue that goodwill is a vital ingredient on both sides to settle the matter on a commercial rather than a litigious basis. If this goodwill does not exist, then the parties have no option but to resort to arbitration or the courts, without wasting further time and resources.”
(Kwayke 1993, Cited by Cunningham 2015) further argued about ADR that it is conducted in a private place the initiation form both parties is voluntary. An informal hearing in front of a neutral third party where the disputants negotiate to reach a settlement if both parties agree an acceptable settlement then they follow up the procedure to implement a settlement otherwise in case of dissatisfaction it’s their own disposal to go for arbitration. Alternate dispute resolution as mentioned above is a structured but quick process as compared to court hearings or litigation or arbitration it saves time and costs both.
In contrast to The Law Reform Commission's (2010) explanation about Alternate dispute resolution, the law society in their guide of alternate dispute resolution mentions about more than a few ways or methods of solving disputes which includes but not limited to mediation, conciliation, arbitration, adjudication, expert determination (Lawsociety 2018)
According to law society guide to alternate dispute resolution, mediation can be explained as, “Mediation is a private and confidential dispute resolution process in which an independent third party, the mediator, seeks to assist the parties in reaching a mutually acceptable settlement. It is a voluntary and non-binding process that only becomes binding on the parties if and when a settlement is reached” (Lawsociety 2018) one of the main disadvantage of mediation is that it could be a lengthy or time delaying process rather a quick one provided that either of the parties show lack of interest to participate in process, low determination to achieve a resolve, failure in engagement with the other party or with the mediator.
“Conciliation is a voluntary process in which the parties to a dispute agree to avail of a neutral and impartial third party to assist them in resolving their industrial relations differences” (Workplace Relations 2019) workplace relation commission known as WRC in Ireland is known for facilitating the process between intra-business or internal business and industrial disputes also between employees and owners in general. WRC facilitates the process by providing the conciliation officers.
“Conciliation ensures party autonomy, Conciliation ensures the expertise of the decision-maker, Conciliation is time and cost-efficient, Conciliation ensures confidentiality
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The parties can choose the timing, language, place, structure and content of the conciliation proceedings” (Dispute-resolution-Hamburg 2013)
The parties are free to select their impartial and independent conciliator having qualities of their own choice of professional background. Disputants have the facility in conciliation to set criteria of preference like; experience, professional expertise, past proven record, availability, language and cultural skills. Additionally, it is cost-efficient, discrete and confidential.
“Arbitration in Ireland is governed by the Arbitration Act 2010” (Lawsociety 2018) . Arbitration is a process is similar in some characteristics to mediation but arbitration is normally picked up by parties to settle their commercial disputes as a litigation alternative. “Arbitration also involves a neutral third party (the arbitrator) who is responsible for running the process and making the decisions necessary to resolve the dispute. Unlike a judge (a public official) the arbitrator is typically a private person chosen by the parties. The person chosen to arbitrate the dispute often has specialized expertise in the subject matter of the dispute; legal training is required only if the parties so specify” (Mnookin, 1998) furthermore, “The parties’ agreement to submit their disputes to arbitration is most commonly found in the form of an arbitration clause incorporated into the contract between the parties. This becomes the basis of the identification of benefits and adverse side of arbitration. Arbitration proceedings are held privately in partnership disputes important company or business-related sensitive data information remains private as compared to being proceedings held in public. As explained by Lawsociety (2018) An arbitrator is a specialist of his field with knowledge, and experience parties have a chance to choose the specialist arbitrator. Less expensive than litigation, control over the procedure.
On the other hand, there is a disadvantage of arbitration as well because after the arbitrator’s award there no or very limited chance of appeal from the any of the parties in courts, it is considered as final and bind. The Lawsociety (2018) in its guide also mentioned an interesting disadvantage about its enforcement that according to the 1958 New York Convention on recognition and enforcement of foreign arbitral awards helps arbitration awards to be enforced in to those 150 countries which are part or subscribed to the convention.s
On further critical analysis, it reveals that there are some disadvantages of alternate dispute resolution the potential disadvantages by (Kwayke 1993, Cited by Cunningham 2015)
Furthermore, a simple example of a worker plumber and a client elaborates the process as if a plumber may have left a joint of water or sewer left open/undone inside the house after he finished his work and that caused flooding in house resulting in damage of personal properties cloths, electronics, books furniture than that is the fault of a plumber instead of filing a lawsuit against plumber in court they can simply sit down and ‘negotiate’ over the issue where client can ask the plumber to pay for the damages or any loss they can mutually agree if it goes smooth than the problem is resolved they can use a solicitor to legalize or formalize the settlement if they want.
In mediation, if in the same above case of plumber and client they couldn’t reach a mutual common ground they can ‘voluntarily’ go for mediation option where an individual neutral third party called mediator help sort things out. A mediator will discuss the issue with both parties separately individual basis (CACUS) or jointly to check any commonalities or points of agreement this help plumber and his client to evaluate options available for them to make a decision. A mediator may also suggest a solution but a mediator cannot decide or give his decision.
In the case of Conciliation both parties agree to attend a conciliation officer and at a certain point of time plumber and his client both ask the conciliation officer to provide them with a non-binding settlement proposal unlike a mediator which may refrain from making such a proposal (Dispute-resolution-Hamburg 2013) (Kwayke 1993, Cited by Cunningham 2015) lists the following additional potential advantages: a less formal and more flexible and convenient arrangement regarding place, date and time can be accommodated; the outcomes are agreed by the opposing parties themselves rather than being influenced by lawyers: - self-determination; suitability of ADR to commercial and technically orientated construction disputes; potential for a creative and amicable outcome in response to an evaluation of the respective cases; focus on mutually beneficial commercial, rather than legal solutions, and focus on continuity of ongoing business relationships without loss of face.
It must be remembered, however that ADR techniques, while generally successful, will occasionally fail and the dispute will then proceed to litigation or arbitration. This failure will probably add to the overall cost and time taken to resolve the dispute. Critics of ADR may argue that “it is soft justice, nothing more than an additional layer of cost in the litigation stream. …’ (LRC, 2010)
The United States of America, for example, is one of the countries where the difference of opinion is promoted or even appreciated in order to give people right to have their voice be heard. same is the case in many other countries around world but we will take USA as an example. In the journal of dispute resolution Shonholtz (2003) in first premise discussed the absence of conflicts in democratic societies due to their constitutional responsibility to peacefully address the issues while encouraging the peoples’ right to have diverse opinions, expression of ideas, forming different political parties according to their ideology additionally the development of public policies that could be against various interests of either societies or businesses.
Conclusion:
Applying the right appropriate alternate dispute resolution technique depends on the specific situation or circumstances of the case, particularly nature, intensity and complexity of the dispute between the parties. (continue)
References
- Shonholtz, R. (2003). General Theory on Disputes and Conflicts. Journal of Dispute Resolution, (2), pp.1 - 10.
- Law Reform Commission (2010) Alternative Dispute Resolution: Mediation and Conciliation, Law Reform Commission, Dublin [online] Available at: https://www.lawreform.ie/_fileupload/reports/r98adr.pdf [Accessed 24 Mar. 2019].
- Cunningham, T. 'Dispute Resolution under the Principal Irish Forms of Building Contract' (2015). [online] Available at: https://arrow.dit.ie/cgi/viewcontent.cgi?article=1054&context=beschreoth
- Burton, J. (1990). Conflict. 1st ed. London: Palgrave Macmillan Limited.
- Murdoch, J. and Hughes, W. (2000). Construction Contracts law and management. Google Books. [online] Available at: https://books.google.ie/books?id=_9SPAgAAQBAJ&printsec=frontcover&dq=Murdoch,+J+and+Hughes,+W+(2008)+Construction+Contracts:+Law+and+Management,+4th+ed&hl=en&sa=X&ved=0ahUKEwiSvoWmq5PhAhVtURUIHe4-CsQQ6AEIKDAA#v=onepage&q&f=false [Accessed 24 Mar. 2019].
- Cunningham, T. 'Dispute Resolution under the Principal Irish Forms of Building Contract' (2015). [online] Available at: https://arrow.dit.ie/cgi/viewcontent.cgi?article=1054&context=beschreoth
- Ashworth, A., Hogg, K. and Higgs, C. (2013). Willis's practice and procedure for the quantity surveyor. Chichester, West Sussex: John Wiley & Sons Inc.
- Dispute-resolution-hamburg.com. (2013). What is conciliation? - Dispute Resolution Hamburg. [online] Available at: http://www.dispute-resolution-hamburg.com/conciliation/what-is-conciliation/ [Accessed 26 Mar. 2019].
- Workplacerelations (2019). Conciliation Services - Workplace relations. [online] Available at: https://www.workplacerelations.ie/en/Workplace_Relations_Services/Conciliation_Services/ [Accessed 26 Mar. 2019].
- Lawsociety (2018). ADR GUIDE. Blackhall Place Dublin [online] Available at: https://www.lawsociety.ie/globalassets/documents/committees/arbitration-and-mediation/adrguide.pdf [Accessed 27 Mar. 2019].
- Mnookin, R. (1998). Alternative Dispute Resolution. [online] Ssrn.com. [online] Available at: https://www.ssrn.com/abstract=117253 [Accessed 27 Mar. 2019].
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