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The use of different strategies in dispute resolution aims to address and resolve disagreements between parties. Both formal and informal methods are used in the process, but only within the bounds of the legislation.
Alternative Dispute Resolution is a recognized judicial alternative to litigation for resolving disputes. It is also known as effective dispute settlement. Legislation, contracts, the parties to a dispute, or the courts may all be used to carry out all the ADR procedures.
A negotiation is a process in which two or more people who are at odds come to an understanding. The agreement reached by the parties reflects a compromising position, not necessarily one that either of the parties would have wished to go by2. The process is purely based on the principles of equity and mutual convenience.
Another example of ADR is mediation. In this approach, a neutral third party comes in handy to settle the dispute rocking two or more parties. The ADR method is particularly useful when the parties are no longer able to find common ground. Alternatively, the parties may be unwilling to strike an agreement. Thus, the negotiations between the parties are facilitated by a non-partisan individual.
Arbitration is another ADR method. In this approach, the conflicting parties present their cases to one or more parties outside their circles. Parties decide to use this method to solve their disputes privately instead of going to the court. The process cannot kick off unless the conflicting parties have given it a nod. Additionally, the parties corporately choose an arbitrator, following the World Intellectual Property Organization (WIPO) statutes. In case the arbitrators are three, each of the parties selects one individual. The two chosen arbitrators then agree on the lead arbitrator.
How to Choose DR Method
Choosing the best Dispute Resolution technique to employ is not easy. It requires patience and sobriety. The parties have some considerations upon which they can base their DR choices. One of the considerations is the strength of the case at hand3. A person acquainted with legal aspects can tell whether a case can stand in court or not. In case it cannot, they can suggest alternative resolution techniques.
The other consideration is time. Although the time required to conclude cases in courts has significantly reduced, there is still a large room for improvement. The parties intending to resolve their conflicts fast would rather resort to other dispute resolution methods apart from litigation.
The relationship between the parties at loggerheads also determines the choice of the most appropriate DR method. A less formal technique would be most appropriate for parties locked in commercial and or personal relationships3. The informal technique will be chosen in a bid to ensure that the long-standing relationship is not hurt in the quest for justice.
Advantages and Disadvantages of DR Methods
For one to determine the best DR method, they have to assess the merits and demerits of each technique. Firstly, we have the consensual processes namely mediation and negotiation. One of the advantages of these two approaches is that the issue at hand is easily resolved and with less stress. Since the public is not invited to the hearings, confidentiality of the matter at hand is maintained. Another advantage is that the conflicting parties have a significant influence on the direction that the case takes. They can even reach an agreement without coercion. The parties are also in a better position to open up and air their views. In this way, the most appropriate decision can be reached since there is no information asymmetry.
One of the demerits of both mediation and negotiation is that they can be used as diversionary tactics. Additionally, there are no legal precedents that can be used as a guide to the most appropriate action. Thus, the solutions for similar cases vary significantly. In the case of negotiation, the fact that there is no neutral party may derail the efforts by the conflicting parties to reach an amicable solution.
Arbitration and trial are usually referred to as adjudicative processes. They have some advantages. One of the merits is that the parties can determine and create the process. To their levels of formality, the parties have no otherwise but to adhere to the correct code of conduct. The processes also oblige the conflicting parties to act in good faith. The decision made also binds the involved parties, ensuring equity and justice at the end of the process.
One of the demerits is that the parties do not have the full liberty to appeal. The nature of the decision made is also largely dependent on the arbitrator. Lastly, it is worth noting that the case may be costly regarding time and financial resources especially when the involved parties are uncooperative.
How DR is incorporated in Australian Legal System
The Australian legal system operates both at the state and federal levels. The system allows for DR methods to be used in resolving conflicts, coming in only when a misunderstanding has reached its bottom low. Alternatively, legal redress is instituted once some clarification is needed. The intervention comes in handy to ensure consistency, predictability, and certainty in the justice process. The main reason for the incorporation of DR methods into the Australian system is the very fact that there is a huge backlog of cases in the Australian courts.
Aboriginal and Torres Strait Islander Peoples
There has been a contention in the legal circles that it is not sufficient to determine mainstream ADR techniques in Torres Strait Islander and Aboriginal society, the incorporation of cultural aspects notwithstanding. Firstly, the community is a strong proponent of mediation. Through the process, the people can efficiently manage and resolve conflicts. The rigidity of their mediation process has been criticized by some quotas, though. Many are of the opinion that the process ought to accommodate diversity by adopting some of the western mediation models. There is a need for economic, administrative, and political support in doing this. Failure to do this may well defeat the very cultural re-empowerment the Aboriginal and Torres Strait Islander community seeks to achieve.
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