01 February 2012 Written by  Tefera Eshetu and Mulugeta Getu

Purpose of ADR and its demerits

What are the advantages of ADR?

The age-old complaints lodged against lawyers and the legal process has gained an amplified resonance in the contemporary world community. The common conception is that judges and lawyers, the procedural rigor of justice and substantive incantation of legality, lay Jury and technical experts hurt more than they help. The recourse to legal actors and proceedings is cost , emotionally debilitating, and potentially counterproductive .It is to meant that now it is a common knowledge that existing justice system is not able to cope up with the ever increasing burden of civil and criminal litigation . The problem is not of a load alone. The deficiency lies in the adversarial nature of judicial process which is time consuming and more often procedure oriented.  There is growing awareness that in the bulk of cases court action is not appropriate recourse for seeking justice.

Judicial process is set in motion by the action of an aggrieved party. Each party’s case is presented before the judge by the advocators, who are expert in court craft, in straight jacket of rules of procedure and substantive law. The Judge perceived the dispute (or the issue involved ) in the backdrop of known legal concepts , sifts evidence to arrive at the truth, hears arguments to determine as to how logically the parties stand in terms of applicable legal concepts and pronounce his verdict accordingly. The parties are bound by the verdict, at the peril of legal sanctions, if disobeyed. Represented by lawyers (especially in developed countries) the parties are kept at a distance not only from the judge but also) from each other. The end result is a win–lose litigation .Thus, the dispute is liquidated and justice done or that is what is professed. But the difference between the parties continue to subsist, the competing interest of the parties remain unsolved, inter-personal relationship of the parties becomes more hardened. The adversarial court does not aim at resolution of competing claims of member of the society. It aims at upholding the one and rejecting the other , leaving the conflict between the parties un solved .Thus,  apart from the fact that recourse  to justice  through the court system is time consuming and inaccessible  due to mounting arrears, the judicial process itself is not oriented for the adjudicating upon rights –liability relationships  created under legal regimes pertaining to modern science and high technology because the subjective matter of the disputes arising from such relationship can be better understood in terms of scientific and technological concepts though disputes are stated in terms of usual legal concepts.

In its philosophical perception, ADR process is considered to be model in which the dispute resolution process is qualitatively distinct from judicial process. It is a process where disputes are settled with the assistance of a neutral third party generally of parties own choice: where the neutral is generally familiar with the nature of the dispute and the context in which such a dispute normally arise; where the proceeding are informal, devoid of procedural technicalities and are conducted, by and large, in the manner agreed by the parties; where the dispute is resolved expeditiously  and with less expenses: where a decision making process aims at substantial justice, keeping in view the interests involved and the contextual realities. In substance the ADR process aims at rendering justice in the form and content which not only resolves the dispute but tends to resolve the conflict in relationship of the parties which has given rise to that dispute.

Having stating the above general   description about the purposes of ADR in general, here under are specific purposes of ADR with their justifications.

  1. A. Reduction of Cost and Time

One of motivations for ADR system is to reduce the cost and time involved in solving disputes. If a new dispute resolution system can reduce costs and achieve out comes that are just as good as those under previous system, it make the new system desirable. Law suits are expensive, some times the cost goes even the extent of making the victory of a party insignificant or exceeding of the amount of judgment .There are court fees, filling fees, lawyers’ fees, and other costs.  There would also be loses to be incurred by both litigants because of spending longer time in litigation that may not be covered by the courts awards. On the other hand, an ADR system can make it possible to use process that cost small fraction of the litigation, and yet produce as good or even better results.   Mediation is usually designed to start and finish in one day. The disputants usually share the cost of the mediator. In this circumstance, therefore, the total cost of mediation is minimal as compared to the cost of litigation.

  1. B. Improve or Maintain the Relationship

In situations where the disputants have an ongoing relation , ADR system allows them to work through their difficulties in a productive way that does not destroy their relationship. After acrimonious litigation, disputants rarely want to put the past behind them and work cooperatively. The dispute resolution system may provide process that will not leave people to work together angry and frustrated with either the result or the process itself. In the ADR process the disputants could rather learn information that will allow them to work more effectively in the future.

  1. C. Satisfactory Outcome

Regardless of the process used, the solution must solve the problem that exists. ADR procedures tend involve the parties with the view to achieving settlement. ADR procedures create a formal setting to bring parties together for serious attempt at resolving a problem .A dispute resolution process must move parties towards workable, durable and easily implement able out come.  ADR procedures help to afford chance that the parties can make real progress on the case and that the parties can communicate more fully and frankly through a third party.

  1. D. Deal  with Emotion

The ADR process will give disputants an out let to discuss their frustrations. They will get the chance of venting emotions in non-threatening environment. This will help the disputants be satisfied with the outcome. ADR provides for effective and neutral methods or factors for achieving maximum impact on the process, strategy, and   tactics to words resolution.  A disputant will be ready to deal with the issues when he or she is satisfied that other person has listened to his or her point of view.

  1. E. Avoid Future Disputes

An ADR system can yield us techniques that can resolve disputes effectively and wit out damaging relationships. The process used for a dispute at hand can provide a frame work to deal with anticipated disputes .In the future or recurring disputes, the system may help to take advantage of the resolution in the past to avoid guidance for the future, and to learn from experience.

1.5. Demerits (Shortcomings) of Litigation

As traditional approach to resolve disputes, the major draw backs may be analyzed in various aspects. The following are the major ones:

A) Cost of Litigation

Law suits are expensive. There are legal fees, filling fees and cost that can be imposed against the losing disputant. There are costs for being away from daily work to attend court hearing and at this moment the employer increase cost.  In some cases, too, the cost of trying the case may exceed the amount of the judgment.

B) Time

It takes time from the commencement of the law suit until a judgment at the trail. Even after the trial, the loosing disputant may appeal and it may take a good deal of time before final decision is rendered. The is also time that is needed for the implementation of the judgment

C) Emotional Cost

Litigation is an emotional process. It increases tension between the parties. Litigants consider, while they are out of court, what they have said; what they should have said; what they will say; how unfair the process; what they may come out under cross –examination; and the consequence of loosing.

D) Litigation is Public

The public has the right to attend court proceeding but in few confidential cases. The press report and comment on the proceeding might be dispersed through different Medias. On the other hand, the issues in the dispute may be confidential ones that the disputants do not want to share with others. Litigants may be embarrassed about the allegations made against them and may be made public regardless of whether they are true or not.

E) Absence of creative solutions

Judges are empowered to decide the issue before them according to the law, even if the solution to the issue is best fit to the other issue. Judges interpret the law relevant to the case and determine the case based on the legal rights of the parties. They are not permitted to expand the list of possible options to see if the particular case would be best served by a solution that was not argued and that application of the law would not allow.

F) Little Opportunity for the Parties to Vent Frustration

In court litigation the opportunity for the parties to say what is in their minds and   to express their views to each other is very little. Litigants can answer questions when the rules allow them to answer. There is no opportunity for them to talk about how the litigation has affected them, or to vent about what has occurred. Although there is discovery, indirect and cross- examination, there is no opportunity to ask the questions that the parties want to ask each other and to say what the parties want to say.

G) Unpredictability

In litigation, both sides argue the facts that they believe apply to the issue to support their positions. However, at the end, the judges will decide on the issue each side usually believed that his arguments and analysis is better than the other side’s. However, the issue is unpredictable and is necessary for the judge to make a decision, which is binding. As a result a risk in going to trial and putting the decision in the hands of the judge. Besides there is no    guarantee that the judge will always find the truth.

H) Expertise of Decision Maker

In trail, the court selects the judge. Moreover, the judge may or may not understand the unique attributes of the dispute. Judges may work hard to learn the law relevant to the case before them and do their best to make informed and reasoned decision. Nevertheless, they may lack the expertise in all area to properly address the merits of the claim being made.

G) Control over the Process

In litigation, the process is determined by procedural laws and by the judge, the disputants have no control over it. They are told when to sit, when to stand, when to speak, etc. they have no control who presents first and who follows, when the process at a day will finish.

H) Win/Lose

In court litigation, a judge must, determine the winner and the loser. There must be a loser in particular litigation. Therefore, litigation ends up in determining the winner and the loser; not in an agreement or will full disagreement.

I) Decisions are Imposed

Court decision is imposed on the loser against his /her expectation. People rarely like to have decision imposed on them. Most of the judgment debtors of the court judgments perceive it as extremely imposed and unjust. They consider themselves as loser. And even though judicial enforcement mechanisms can be used, mostly they attempt to avoid enforcement of this decision. on the other hand ,ADR mechanisms provides with process and procedures that would help disputing parties to fix the outcome before the end of the process or  to be convinced with whatever outcome  there may be no need of enforcing settlement agreements in negotiation and mediation.

J) Damage to Relation

Usually the end of litigation leads disputants to hate each other and their relationship is destroyed. The disputants may face difficulty to amend their relationship to the point where they can do business together and enter into future negotiation –they will take it not worth to enter in to contact with their former adversary.

1.6. Demerits of ADR

Of course, together with many advantages, ADR has been also criticized for some disadvantages. In order to get the out most advantages of the ADR, everybody needs to know the pitfalls of ADR so as to use court litigation if the latter would bring best result than the former in specific case.

Do you know the disadvantages of ADR? Can you mention them?

Different scholars approached the pitfalls of ADR from different ways: some of them specify common pitfalls of ADR methods and others on the other hand illustrate the short comings of each ADR methods. Here under are the common shortcomings of ADR methods and under chapter two there will be the discussion on the disadvantages of at least on each common ADR methods.

A) In balance of power

The benefit of voluntary negotiating agreement may be undermined where there is a serious imbalance of power between the parties –in effect , one party is acting less voluntarily than the other.

B) Lack of legal expertise

Where a dispute hinges a difficult point of law, an arbitrator may not have the required legal expertise to judge.

C) No system of precedent

There is no doctrine of precedent, and each case is judge on its merits, providing no real guidelines for future cases.

D) Enforcement

The decision not made by the court may be difficult to enforcement.  Don’t forget that other ADR scholars take easily enforcement of compromise in ADR process as one of the advantages of the system.

Last modified on Wednesday, 02 May 2012 13:05