Is Alternative Dispute Resolution A Friend Of The Bar And The Bench?

The courtrooms are overwhelmed by the volume of litigation they have to deal with and this slows down the growth of good businesses.  Consequently, businessmen and women turn to Alternative Dispute Resolution (ADR) which is more flexible, confidential and fast. ADR is generally seen as being faster and more economical than court proceedings. It can also be shaped to suit the specific needs and expectations of parties from different countries and cultures.

For business people, the key to keeping risks under control is often a question of keeping the prospects of going to court to a minimum level. They make sure everything possible is done to minimize the negative impact that litigation may have on their balance sheet and reputation. In this regard ADR readily offers possibilities to ensure that disputes do not result in litigation.

Professor Fiss of Yale Law School contends that ADR settlement as a general rule is a social good. Some class of people are of the view that ADR is a calculated effort by the establishment to discourage the disadvantaged from asserting their legal rights. Another argument raised on behalf of the lower income users of ADR is that they are relegated to “second class” justice.

Yet another argument raised is the fact that there are no evidentiary rules to prevent the introduction of unreliable or even prejudicial evidence. In short, it is alleged that there is no guarantee of due process in mediation.

The assumption that a lot of people going to alternative dispute resolution would prefer to go to court is doubtful. This is because where the disputants have an on-going relationship ADR may be far more responsive to the needs of the disputants than going to court. What the disputants desire is solution to their issues and at the same time keeping their relationships and transactions. Nothing seems to best yield this outcome than alternative dispute resolution mechanisms.

Alternative dispute resolution is the sleeping giant of the twenty first century and will certainly affect the dispensation of justice for all sectors of the society. However, it will definitely not be a friend of the bar and the bench should they fail to recognize its relevance and undeniable place in the judicial system.

Lawyers frequently exert considerable control over their clients, which derives from their ability to utilize a complex set of technical rules. This dominance is jeopardized by the use of dispute resolution methods like negotiation and mediation that place greater emphasis on client control over the outcome. These methods contemplate at times a diminished role for lawyers and at other times a different conceptualization of their role.

If mediation as argued deters future disputes so that people do not have to go to lawyers as often, then lawyers will see alternative dispute resolution mechanisms as disadvantageous to their economic interest.

We have lawyers who support alternative dispute resolution processes in principle, but they believe that a suggestion to the opposing counsel that ADR and not litigation be explored may be taken as a sign of weakness, which will negatively affect the lawyer’s negotiating power. The view about diminishing role particularly for the bar is further reinforced by the involvement of non-lawyers in the provision of alternative dispute resolution services.

After all is said and done, a visionary judicial system should respond to the present day realities and demands of the customers by making a number of proactive steps including a better understanding of the ADR concept, inclusion of ADR as part of the offerings of the judicial system, exposure and training for the judges and lawyers on ADR and case referrals.

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